Historical  AND  Practical  Politics 


^  PRINCETON,  N.  J.  ^ 


Presented  by  Wcsvi^.  c3r'cSc\  Cy\ .  Ci^r-'cTwn g\0\\ 


Division  ...J^...(>1..1.1 


Section 


THE  STATE 


JAN  8  1915 


ELEMENTS  OF  HISTORICAL  AND  PRACTICAL 
POLITICS. 


A  SKETCH  OF  IKSTITUTIONAL  HISTORY 
AND  ADMIISriSTRATIOK 


y  BY 

WOODROW  WILSON,  Ph.D.,  LL.D., 

Author  of  **  Congressionax,  Government." 


BOSTON,  U.S.A.: 
D.  C.  HEATH  &  CO.,  PUBLISHERS. 
1890. 


COPTRISHT,  1889, 

Bt  WOODROW  WILSON. 


Ttpoorapht  bt  J.  S.  CcsHiNO  &  Co.,  Boston 


fits  Mitt, 

Whose  Affectionate  Sympathy 
And  Appreciative  Interest 
Have  so  Greatly  Lightened  the  Labor 
Of  Preparing 

ffeis  moxK 

It  is  Gratefully  Dedicated 
by 

THE  AUTHOR. 


TABLE  OF  CONTENTS. 

CHAPTER  PAGE 

Topical  Analysis     vi 

Preface  xxxiv 

I.   The  Probable  Origin  of  Government   1 

II.   The  Probable  Early  Development  of  Government   17 

III.  The  Governments  of  Greece  and  Rome   30 

IV.  Roman  Dominion  and  Roman  Law   129 

V.   Teutonic  Polity  and  Government  during  the  Middle  Ages  147 

VI.   The  Government  of  France  ,   176 

VII.   The  Governments  of  Germany   226 

VIII.   The  Governments  of  Switzerland   301 

IX.   The  Dual  Monarchies  :  Austria-Hungary,  Sweden-Norway  334 

X.   The  Government  of  England   366 

XI.   The  Government  of  the  United  States   449 

XII.   Summary :  Constitutional  and  Administrative  Develop- 
ments   575 

XIII.  The  Nature  and  Forms  of  Government   593 

XIV.  Law:  Its  Nature  and  Development   610 

XV.   The  Functions  of  Government   637 

XVI.   The  Ends  of  Government    656 

Index   669 


TOPICAL  ANALYSIS. 

Sec. 

I.  The  Probable  Origin  of  Government  1-24 

The  Nature  of  the  Question   1 

The  Races  to  be  studied  :  the  Aryans   2 

Semitic  and  Turanian  Instance   3 

Government  rested  First  upon  Kinship   4 

Early  History  of  the  Family :  Was  it  originally  Patri- 
archal ?   5 

The  Evidence  :  India   6 

Slavonic  Communities,  Ancient  Irish  Law,  and  Old 

Teutonic  Customs   7 

Greek  and  Roman  Families   8 

A  Doubt   9 

The  Non- Aryan  Family   10 

Aryan  Tradition   11 

From  the  Patriarchal  Family  to  the  State  —   12 

Prepossessions  to  be  put  awa}"   13 

The  State  and  the  Land   14 

Contract  vs.  Status   17 

Theories  Concerning  the  Origin  of  the  State :  the  Contract 

Theory   18 

Traditions  of  an  Original  Law-giver   19 

Theory  of  the  Divine  Origin  of  the  State   20 

The  Theories  and  the  Facts   21 

The  Truth  in  the  Theories     23 

Conclusion   24 

II.  The  Probable  Early  Development  of  Government  25-46 

The  Beginnings  of  Government   25 

The  Family  the  Primal  Unit   26 

Persistence  of  the  Idea  of  Kinship   27 

Fictitious  Kinship:  Adoption   28 

Kinship  and  Religion   29 


TOPICAL  ANALYSIS.  VII 

•  Sec. 

The  Bonds  of  Religion  and  Precedent   30 

The  Reign  of  Custom  •   31 

Fixity  of  System  the  Rule,  Change  the  Exception   32 

Changes  of  System  outrun  Changes  of  Idea   33 

How  Did  Change  enter  ?   34 

Differences  of  Custom   35 

Antagonism  between  Customs   36 

Competition  of  Customs   37 

The  Better  Prevail   38 

Isolation,  Stagnation   39 

Movement  and  Change  in  the  West   40 

Migration  and  Conquest   41 

Inter-tribal  Imitation   42 

Individual  Initiative  and  Imitation   43 

Institutional  Changes  :  Choice  of  Rulers   44 

Hereditary  replaced  by  Political  Magistracy   45 

Summary   4G 

III.   The  Governments  of  Greece  and  Rome  47-187 

The  Evolution  of  Government   47 

(1)  The  Governments  of  Greece:    48-110 

The  Patriarchal  Presidencies:  Legislation   48 

TribalJustice   49 

Patriarch  and  Priest   50 

Not  Lord,  but  Chief   51 

The  Primitive  A^yuos   52 

The  Antique  '  City '   53 

Confederate  Growth  of  Family  Groups   54 

The  '  City  '  a  Confederacy  of  Gentes   55 

The  Elders   57 

Religion  :  the  Priesthood   58 

Primogeniture   GO 

The  City's  Religion   61 

Decay  of  the  Antique  City   62 

The  City  absorbs  its  Constituent  Parts   64 

Decline  of  the  Elders'  Separate  Powers   65 

Political  Disintegration  of  the  Gens   66 

Athens  67-94 

The  City  of  Solon  :  King.ship  gone   67 

The  Archonship   68 


viii  TOPICAL  ANALYSIS. 

Sbo. 

Nine  Archons   69 

Solon  Archon  Eponymus  :  the  Crisis  .*   70 

Tlie  Draconian  Code   71 

Solon's  Economic  Reforms   72 

Solon's  Political  Reforms  :    the   Four  Property- 
Classes   73 

Eligibility  and  Election  to  Office   75 

The  Assembly  and  the  Senate   76 

The  Senate  of  the  Areopagus   77 

The  Judiciary   78 

The  New  Principles  introduced   79 

Pisistratus  and  the  Solonian  Constitution   80 

Clisthenes   81 

The  New  Demes  and  the  New  Tribes   82 

The  Arrangement  of  the  Demes   83 

Religion  and  the  Tribal  Organization   84 

Expansion  of  the  Popular  Jury  Courts   85 

The  Ten  Strategoi   86 

Ostracism   87 

Success  of  the  Clisthenian  Constitution   88 

The  Persian  AVars  and  the  Extension  of  Political  Privi- 
lege   89 

Constitutional  Measures  of  Pericles   90 

Powers  of  the  Areopagus  Further  Curtailed   91 

Decline  of  Athens     92 

The  Metoeci   93 

The  Athenian  Slaves   94 

.  Sparta  95-110 

Fixity  of  the  Spartan  Constitution    95 

The  Spartans  a  Garrison  of  Conquerors   96 

Slaves  and  Helots   97 

Perioeci   98 

The  Spartiatce :  Property  Laws  and  State  Guardian- 
ship   99 

The  Two  Kings   100 

The  Council  of  Elders   101 

The  Assembly   102 

Election  of  Elders     103 

The  Ephors   104 

The  Administration  of  Justice   106 


TOPICAL  ANALYSIS.  ix 

Sec. 

The  State  Discipline   107 

Principle  of  Growth  in  the  Spartan  Constitution   108 

Lycurgus   109 

Greek  Administration   110 

Hellas  111-143 

Greece  not  Hellas   HI 

Original  Migrations  of  the  Greeks   112 

The  Phoenician  Influence   113 

Later  Migrations  of  the  European  Greeks   114 

Re-settlement  of  the  Asiatic  Coasts  from  Greece. . .  115 

The  Greek  Mediterranean   116 

Race  Distribution   117 

The  Greek  Colonial  System   118 

Colonial  Constitutions    119 

Law  of  Constitutional  Modification  in  Hellas. .  121 

Union  and  Nationality^  among  the  Greeks   122 

Religious  Community:  the  Delphic  Amphictyony . .  123 

The  Delphic  Oracle  :  its  Influence   124 

Political  Aggregation  :  the  Achaean  Supremacy   125 

Cretan  Power     126 

Supremacy  of  Argos   127 

Games  and  Festivals  :  the  Hellenic  Spirit   128 

The  Delian  Confederacy   129 

Athenian  Empire . .    130 

The  Peloponnesian  War :  Oligarchies  vs.  De- 
mocracies  131 

Macedon   133 

The  Hellenization  of  the  East   134 

The  Achaean  League   138 

The  iEtolian  League   140 

Rome  and  the  Western  Greeks   142 

After  Roman  Conquest   143 

(2)  The  Government  of  Rome  144-187 

The  Ancient  Roman  Kingdom   144 

Leading  Peculiarity  of  Roman  Political  Development.  . .  145 

Reforms  of  Servius   146 

The  Centuries   147 

Beginnings  of  the  Republic   148 

The  Senate   149 

Composition  of  the  Senate   150 


X 


TOPICAL  ANALYSIS 


Sec. 

Roman  Conquests  and  their  Constitutional  Effects   151 

The  Plebeians   152 

Secession  of  the  Plebeians  (b.c.  494)   153 

The  Tribunes   154 

Progress  of  Plebeian  Predominance   155 

The  Plebeians  and  the  Magistracies   156 

Breakdown  of  the  Republic   157 

Provincial  Administration   158 

Causes  of  Failure   ;   159 

Establishment  of  the  Empire   160 

Evolutions  of  Government  under  the  Empire  161-187 

Genesis  of  the  Empire   161 

Tiberius  Gracchus  to  Augustus   162 

Transmutation  of  Republican  into  Impe- 
rial Institutions  under  Augustus   165 

The  Completed  Imperial  Power   169 

The  New  Law-making   170 

Judicial  Powers  of  the  Senate   171 

Growth  of  New  Offices   172 

The  Provinces   173 

The  Empire  overshadows  Rome   174 

Nationalit}' of  the  Later  Emperors   175 

The  Army   176 

Changes  in  the  System  of  Government   177 

Constitutional  Measures  of  Diocletian   179 

Reforms  of  Constantine   181 

The  Household  Offices   184 

The  Eastern  and  Western  Empires :   Greek  and 

Teuton   186 

Religious  Separation  and  Antagonism   187 

Summary   188-195 

The  City  the  Centre  of  Ancient  Politics   188 

The  Approaches  to  Modern  Politics :  Creation  of  the 

Patriarchal  Presidency   189 

Citizenship  begins  to  be  dissociated  from  Kinship. .  190 

Influence  of  a  Non-Citizen  Class   191 

Discussion  determines  Institutions   192 

Politics  separated  from  Religion   193 

Growth  of  Legislation   194 

Empire   195 


TOPICAL  ANALYSIS.  xi 

Sec. 

IV.  Roman  Dominion  and  Roman  Law   196-220 

Currency  of  Roman  Law   196 

Character  of  Early  Roman  Law   197 

Plebeian  Discontent  with  the  Law  :  the  XII.  Tables. . .  198 

The  Growth  of  the  Law  :  Interpretation   199 

The  Praetors  :  the  Praetor  Urbanus   200 

The  Law  and  the  Praetor's  Application  of  it   201 

The  Praetor's  Edict   202 

The  Praetor  Peregrinus   203 

The  Jus  Gentium   204 

The  Jus  Gentium  not  International  Law. . .  205 
Influence  of  the  Jus  Gentium  upon  the  Jus 

Civile   206 

Administration  of  Justice  in  the  Provinces   207 

The  Law  of  Nature   208 

Roman  Citizenship  and  the  Law   210 

The  Jurists   211 

Influence  of  the  Jurists   212 

The  Jurisconsults  under  the  Empire   213 

Imperial  Legislation   214 

The  Codification  of  the  Law   215 

The  Corpus  Juris  Civilis   216 

The  Completed  Roman  Law   217 

Diflusion  and  Influence  of  Roman  Private  Law   218 

Roman  Legal  Dominion  in  the  Fifth  Century   219 

Influence  of  Mosaic  Institutions   220 

V.  Teutonic  Polity  and  Government  during  the  Middle  Ages  221-267 

Contact  of  the  Teutonic  Tribes  with  Rome   221 

Primitive  Teutonic  Institutions   222 

Free,  Unfree,  and  Noble    223 

Inter-Communal  Government   224 

Military  Leadership  :  The  Comitatus   225 

Contrasts  between  the  Teutonic  System  and  the  Roman   226 

Roman  Allegiance  to  the  State   227 

Teutonic  Personal  Allegiance   228 

Temporary  Coexistence  of  the  Two  Systems   229 

Relative  Influence  of  the  Two  Systems   230 

Roman  Influence  upon  Private  Law   231 

Roman  Towns   232 


xii  TOPICAL  ANALYSIS. 

Sec. 

The  Fusion  of  the  Two  Systems   233 

Effects  of  Movements  of  Conquest  upon  Teutonic  Institu- 
tions  234 

(1)  The  New  Kingship   235 

(2)  The  Modified  Land  Tenure   236 

The  Feudal  System   238 

Local  Differences  in  Feudal  Development   239 

Commendation   240 

Political  Disintegration   241 

The  Feudal  Conception  of  Sovereignty   243 

Feudalism  and  the  Towns   244 

The  Guilds   245 

The  City  Leagues   246 

Unifying  Influences  :   247 

(1)  The  Roman  Catholic  Church   248 

(2)  The  Holy  Roman  Empire   250 

Centralizing  Forces  :  the  Carolingians   252 

The  Capets  :  Concentration  of  Feudal  Power   253 

Piecing  together  of  Austria  and  Prussia   254 

Roman  Law  in  Modern  Legal  Systems   255 

The  Barbarian  Codes   256 

Custom  and  Written  Law  in  France   257 

The  Study  of  the  Roman  Law   258 

Entrance  of  the  Roman  Law  into  the  Legal  Systems 

of  Europe   259 

In  France   260 

Local  Custom  in  France   262 

Unifying  Influence  of  the  Royal  Prerogative.. .  263 

The  Parliament  of  Paris   265 

In  Germany   266 

In  England   267 

VI.  The  Government  of  France  268-357 

Growth  of  the  French  Monarchy   268 

Perfection  of  the  Feudal  System  in  France   270 

Materials  of  the  French  Monarchy   272 

Local  Self-Government   273 

Rural  Communes   274 

Liberties  of  Towns :  the  Roman  Municipalities  276 
The  Non-Roman  Municipalities  277 


TOPICAL  ANALYSIS.  XUi 

Sbc. 

The  Towns  and  the  Crusades   279 

Municipal  Privileges   280 

Forms  of  Town  Government   281 

Decay  or  Destruction  of  Municipal  Self -Gov- 
ernment  282 

The  Pays  d'Etats   283 

Functions  of  Local  Estates  in  Finance   284 

Territorial  Development  of  the  Monarchy   285 

The  Crusades  and  the  Monarchy   286 

Institutional  Growth   287 

The  States  General   288 

Character  of  the  States  General   289 

Administrative  Development —   290 

Growth  of  the  Central  Administration   291 

The  Council  of  State   292 

The  Parliament  of  Paris   293 

Departments  of  Administration   294 

The  Ministerial  System   295 

Growth  of  Centralized  Local  Administration :  Louis 

IX   296 

Steps  of  Centralization   297 

Personal  Government :  Louis  XIV   298 

The  Completed  Centralization  :  the  Intendant. .  299 

The  Province   300 

The  Office  of  Intendant   301 

Judicial  Centralization   302 

The  Koyal  Council  and  the  Comptroller 

General   303 

Spirit  of  the  Administration   304 

The  Revolution   305 

Administrative  Work  of  the  Revolution   306 

The  Reconstruction  by  Napoleon   307 

Advances  towards  Liberal  Institutions   309 

The  Third  Republic   310 

The  Framing  of  the  Constitution   311 

Character  of  the  Constitution   312 

Sovereignty  of  the  Chambers   313 

The  Senate   314 

The  Chamber  of  Deputies   315 

In  case  of  Usurpation   316 


xiv 


TOPICAL  ANALYSIS. 


Bkc. 


The  National  Assembly  :  its  Functions  317 

Revision  of  the  Constitution  318 

The  President  of  the  Republic   319 

Influence  of  the  President  and  Senate  321 
The  Cabinet  and  the  Council  of  Ministers  322 

The  Ministries     323 

The  Cabinet   324 

The  Council  of  Ministers   325 

Relations  of  the  Ministers  to  the  President  326 

Ministerial  Responsibility   327 

Questions  and  Interpellations   328 

The  Course  of  Legislation   330 

Committees     331 

The  Budget  Committee   332 

Government  by  the  Chambers   333 

Departmental  Organization     334 

Departmental  Functions   335 

Local  Government  336-352 

The  Department :  the  Prefect   338 

The  Spoils  System  in  France   340 

The  General  Council  of  the  Department  341 

The  Departmental  Commission   345 

Central  Control   346 

The  Arrondissement   347 

The  Canton   348 

The  Commune   349 

The  Communal  Magistracy   350 

The  Communal  Council   351 

Oversight  of  the  Commune   352 

Administrative  Courts :  the  Council  of  State  353 

The  Prefectural  Council   354 

Ordinary  Courts  of  Justice   355 

Jury  Courts   356 

Tribunal  of  Conflicts   357 


VII.  The  Governments  of  Germany  358-504 

The  Feudalization  of  Germany   358 

Ofiicial  System  of  the  Prankish  Monarchy  :  the  Graf  en. .  359 
The  Magistracy  of  Ofiice  and  the  Magistracy  of  Pro- 
prietorship  360 


TOPICAL  ANALYSIS.  XV 

Sec. 

Hereditary  Chiefs   361 

Full  Development  of  Territorial  Sovereignty   362 

The  Markgraf   363 

The  Empire   364 

The  Saxon  Emperors  :  Otto  the  Great  365 

The  Saliau  Emperors  :  Henry  III   367 

The  Hohenstauf  en  :  Frederic  Barbarossa   368 

The  Interregnum  and  the  Electors   369 

The  First  Habsburg  Emperor   370 

The  Golden  Bull   371 

Imperial  Cities   372 

The  Swiss  Confederation   373 

Austria  and  the  Empire   374 

Maximilian  1   375 

Maximilian's  Reforms   376 

The  Habsburg  Marriages   378 

The  Thirty  Years'  War   379 

Until  1806   380 

End  of  the  Old  Empire   381 

Austria's  Hival,  Prussia   382 

The  Mark  Brandenburg   383 

Independence  of  the  Markgraf   385 

Anarchy  in  Brandenburg   386 

The  HohenzoUern   387 

The  Dispositio  Achillea   388 

Joachim  II   389 

Prussia   390 

The  Great  Elector   391 

The  Kingdom  of  Prussia   392 

Frederick  the  Great   393 

Napoleon  :  The  Confederacy  of  the  Rhine   394 

The  German  Confederation   395 

Period  of  Constitutional  Reform   396 

The  North  German  Confederation   397 

Austria  out  of  Germany   398 

The  German  Empire  399-437 

Austria  and  Germany  :  Character  of  the  German  Empire  400 

The  Central  German  States  and  the  Empire   401 

The  Constitution  of  the  Empire   402 

The  Emperor   403 


xvi  TOPICL  ANALYSIS. 

8bc. 

Sovereignty  of  the  Empire  in  Legislation   404 

The  Bundesrath  :  its  Composition  and  Character.. .  405 
Representation  of  the  States  in  the  Bundesrath.  406 

Functions  of  the  Bundesrath   407 

Organization  of  the  Bundesrath  411 

Committees   412 

The  Beichstag :  its  Character  and  Competence   413 

Composition  of  the  Reichstag   414 

Sessions  of  the  iieic/isia^   417 

Organization  of  the  Reichstag   418 

Course  of  Legislation   419 

Election  of  Officers   420 

Imperial  Administration   421 

The  Imperial  Chancellor   422 

The  Vice  Chancellorship   426 

Foreign  xVffairs   427 

Internal  Affairs   428 

Weights  and  Measures   429 

Money   430 

Railways   431 

Posts  and  Telegraphs   432 

Patents,  etc   433 

Military  and  Naval  Affairs   434 

Finance   435 

Justice   436 

Citizenship   437 

The  Government  of  Prussia  438-504 

Stages  of  Administrative  Development  439 

History  of  Local  Government   440 

Early  Organization  of  the  Mark  Brandenburg  441 

Early  Local  Officials   442 

Subsequent  Developments  in  Town  Government  443 

Resulting  Units  of  Local  Government  445 

Process  of  Centralization   446 

First  Results  of  Centralization  448 

Justice  and  Finance   449 

Fusion  of  Departments  of  War  and  Domains. .  450 

Differentiation  of  the  Central  Bureaux   451 

Reforms  of  Stein  and  Hardenberg   452 

Reform  of  Local  Government  before  1872   454 


TOPICAL  ANALYSIS.  xvii 

-  .  -  J^.  . 

Skc. 

Landgemeinde  and  Manors   455 

Reform  of  1872   456 

The  Executive  Departments   457 

The  Council  of  State   458 

The  Staatsministerium   460 

The  Supreme  Chamber  of  Accounts   461 

The  Economic  Council   462 

The  Ministers  in  the  Legislature   464 

The  Landtag :  the  House  of  Lords   465 

The  House  of  Representatives   466 

The  Electoral  System   467 

Equality  and  Competence  of  the  Houses   469 

The  King's  Power  of  Adjournment  and  Disso- 
lution  470 

Local  Government  471-493 

The  Province   473 

Communal  Estates   479 

The  Government  District   480 

The  "  President  of  the  Administration"   483 

The  District  Committee   484 

The  Circle   485 

The  Landrath  and  the  Circle  Committee   486 

The  Diet  of  the  Circle   487 

The  Magisterial  District   488 

The  Rural  Commune   489 

The  City  Commune   490 

General  Principles  of  Prussian  City  Government  491 

The  Administration  of  Justice   494 

Administrative  Courts   500 

The  Court  of  Conflicts   502 

The  Prussian  Courts  and  Constitutional  Questions. .  503 

VIII.  The  Governments  of  Switzerland  505-577 

Feudalism  in  Switzerland   505 

First  Movements  towards  Cantonal  Independence   506 

The  Processes  of  Confederate  Growtli   507 

French  Interference   508 

The  Sonderbund  War   509 

The  New  Constitution   510 

Character  of  the  Constitution   511 


XV  iii 


TOPICAL  ANALYSIS. 


Sec. 


Nationality  and  State  Sovereignty   512 

Indefinite  Constitutional  Grants   513 

Guarantee  of  the  Cantonal  Constitutions . .  514 

The  Cantonal  Governments  515-526 

The  Cantonal  Constitutions  and  the  Federal  Constitution  515 

Position  of  the  Legislative  Power   516 

A  Single  House   517 

Functions  of  the  Cantonal  Legislatures   518 

Share  of  the  People  in  Legislation  :  Imperative  Petition  519 

The  Popular  Veto   520 

The  Referendum   521 

History  of  the  Beferendum   522 

The  Executive  Power   523 

Local  Government:  the  Districts   524 

The  Gemeinde   525 

The  Federal  Government  527-577 

The  Federal  Executive   527 

The  Executive  and  the  Legislature   533 

The  Executive  Departments   534 

Mixed  Functions  of  the  Executive   536 

The  Army   540 

Preservation  of  Internal  Order   541 

Extradition   542 

Appeal  in  Judicial  Cases   543 

The  Federal  Chancellor   545 

The  Federal  Legislature     546 

Composition  of  the  Houses  :  I.  The  National  Council  547 

II.  The  Council  of  States   552 

Functions  of  the  Houses   555 

Revision  of  the  Constitution   556 

The  Federal  Referendum   557 

Functions  of  the  Federal  Assembly   558 

Administration  of  Justice :  I.  The  Cantonal  Courts   559 

II.  The  Federal  Court   567 

Criminal  Jurisdiction  of  the  Federal  Court   569 

Cases  in  Public  Law   570 

Civil  Cases  in  Private  Law   573 

Criminal  Cases   575 

III.  The  Federal  Council :  Administrative  Cases .. .  576 
Inter-Cantonal  Judicial  Comity   577 


TOPICAL  ANALYSIS.  XLX 

Sec. 

IX.  The  Dual  Monarchies  :  Austria-Hungary,  Sweden-Nor\va3^  .578-650 

The  Dual  Monarchies   578 

Austria- Hungary  579-614 

Austria's  Historical  Position   579 

Acquisition  of  Hungary  and  Bohemia  . . .  580 

Bohemia   581 

Moravia   582 

Hungary   583 

Transylvania,  Slavonia,  Croatia   584 

Galicia,  Dalmatia   585 

Bosnia  and  Herzegovina   586 

Austria-Hungary :  Nature  of  the  Union   587 

Variety  of  Race   588 

Home  Rule:  Bohemia,  Hungary   589 

The  Constitution  of  1867   592 

Dual  Character  of  the  Monarchy   593 

The  Fundamental  Laws   594 

The  Common  Government:  the  Emperor- 
King   595 

Succession,  Regency,  etc   596 

The  Common  Ministries   597 

The  Economic  Relations  of  Austria 

and  Hungary   600 

Patents,  Posts,  and  Telegraphs. ...  601 

The  Delegations   602 

Citizenship   603 

The  Government  of  Austria  :  The  Executive  604 

The  Ministry   605 

Legislation  :  The  National  and  Provin- 
cial Legislatures   606 

The  Beichsrath   607 

The  Landtags   609 

Local  Government   610 

The  Government  of  Hungary:  The  Execu- 
tive  611 

The  Reichstag   612 

Local  Government   613 

Croatia-Slavonia   614 

Sweden-Norway  615-650 

Danes  and  Northmen   615 


TOPICAL  ANALYSIS. 


Skc. 

Early  Institutions  of  Sweden  and  Norway   616 

Union  of  Denmark,  Sweden,  and  Norway   617 

The  Independence  of  Sweden   618 

Oscillating  Development  of  the  Swedish  Constitu- 
tion  619 

Bernadotte  and  the  Accession  of  Norway   620 

Norway's  Fight  for  Independence  and  her 

New  Constitution   621 

Constitutional  Contrast  between  Sweden 

and  Norway   623 

The  Fundamental  Laws   624 

The  Common  Government:  The  King   625 

The  Throne   627 

Foreign  and  Common  Affairs   628 

War   630 

Legislative  Control  of  Foreign  Rela- 
tions  632 

Concurrent  Legislation   633 

The  Joint  Councils   634 

Citizenship   635 

The  Government  of  Sweden   636 

The  Swedish  Executive :  The  King  and 

Council   637 

The  Biksdag   640 

Joint  Legislation  upon  Financial  Ques- 
tions  641 

Local  Government   642 

Changes  in  the  Constitution   643 

The  Government  of  Noricay :  The  Norwegian 

Executive   644 

The  Storthing   646 

Local  Government   648 

Changes  of  Constitution   649 

The  Two  Countries   650 

The  Government  of  England  651-812 

I.  Central  Government  651-747 

Origin  of  the  Constitution  Teutonic   651 

Primitive  Teutonic  Institutions   652 

Institutional  Changes  effected  by  Conquest   663 


TOPICAL  ANALYSIS.  Xxi 

Sbc. 

The  Hundred-moot  and  the  Folk-moot   654 

The  English  Kmgdom  and  the  English  County   655 

The  Witenagemot    656 

Powers  of  the  Witenagemot   657 

The  Norman  Eeudalization   658 

The  Great  Council  of  the  Norman  Kings   659 

The  Feudal  System  in  England   660 

Character  of  English  Institutional  Growth   661 

The  Course  of  Development   662 

The  Permanent  Council   663 

Composition  of  the  Permanent  Council   664 

The  Powers  of  the  Permanent  Council   665 

The  Law  Courts   666 

Parliament   667 

Genesis  of  the  Two  Houses   671 

The  Privy  Council   672 

The  Privy  Council  assumes  Judicial  Powers . . .  673 

Origin  of  the  Cabinet   674 

Development  of  the  Cabinet   675 

Parliament  and  the  Ministers   676 

Disappearance  of  Impeachment   677 

The  Executive   678 

Position  of  the  Cabinet   680 

Appointment  of  the  Cabinet  Ministers   681 

Composition  of  the  Cabinet   682 

Ministerial  Responsibility   686 

Legal  Status  of  the  Cabinet   688 

Initiative  of  the  Cabinet  in  Legislation   689 

The  Prime  Minister   690 

Departments  of  Administration   691 

The  Five  Great  Offices  of  State   692 

The  Admiralty,  the  Board  of  Trade,  and 

the  Local  Government  Board   694 

The  Post  Office   695 

The  Treasury ...    696 

The  Chancellor  of  the  Exchequer   697 

The  Estimates   698 

Administrative  Departments  of  the  Privy 

Council   699 

Other  Executive  Offices   700 


xxii 


TOPICAL  ANALYSIS. 


Sec. 

The  Lord  Privy  Seal   701 

The  Chancellor  of  the  Duchy  of  Lan- 
caster  702 

Political  Under  Secretaries   703 

Administration  of  Scotland  and  Ireland   704 

The  Lord  Chancellor   705 

The  Cabinet  as  Executive   706 

Parliament :  1.  The  House  of  Commons,  its  Origin, 

Position,  and  Character   707 

Historical  Contrasts  between  County  and  Bor- 
ough Representatives   708 

Geographical  Relations  of  Boroughs  and 

Counties   709 

Parliamentary  Reform   710 

Election  and  Term  of  the  Commons   716 

Summons,  Electoral  Writ,  Prorogation. . . .  720 

Organization  of  the  House   724 

II.  The  House  of  Lords  :  its  Composition   726 

Function  of  the  House  of  Lords  in  Legis- 
lation  727 

The  House  of  Lords  as  a  Supreme  Court. .  728 

Legislation     729 

The  Constitution  of  England   730 

The  Courts  of  Law   731 

Judicial  Reform :  the  Reorganization  of  1873- 

1877   732 

The  Chancery  Division   733 

The  Court  of  Appeal   734 

The  House  of  Lords   735 

A  Judicial  Committee  of  the  Privy  Council  736 

The  Lord  Chancellor   737 

Civil  Cases   738 

The  County  Courts   739 

Juries   742 

Criminal  Cases   743 

Quarter  and  Petty  Sessions   744 

The  Justices  of  the  Peace   745 

Police    747 

II.  Local  Government  748-812 

Complex  Character  of  Local  Government  in  England. . .  748 


TOPICAL  ANALYSIS. 


xxiii 


Sec. 

General  Characterization   750 

The  County  :  its  Historical  Rootage   751 

Early  Evolution  of  the  County  Organs   752 

Decline  of  the  Sheriffs  Powers   753 

Justices  of  the  Peace   754 

Functions  of  Justices  of  the  Peace  prior  to 

Eecent  Reforms    756 

Character  and  Repute  of  the  Office  of  Jus- 
tice   757 

The  Lord  Lieutenant     758 

The  Reform  of  1888   759 

Administrative  Counties  and  County  Boroughs.  762 

The  County  Councils  :  their  Constitution   764 

Th«  Number  of  Councillors   766 

The  County  Franchise   769 

Powers  of  the  County  Councils   770 

The  Licensing  Function   771 

The  Financial  Powers  of  the  Council   772 

Additional  Powers   773 

The  County  Budget   774 

The  Police  Powers   777 

Boundaries   779 

The  Parish   780 

The  Poor-law  Parish   781 

The  Highway  Parish   786 

The  Union   787 

The  Rural  Sanitary  District   789 

Municipalities     793 

I.  Municipal  Corporations   794 

Judicial  Status  of  Boroughs   796 

County  Boroughs   797 

Other  Boroughs   798 

The  Financial  Powers  of  a  Municipal  Council. .  800 

II.  Urban  Sanitary  Districts   802 

Central  Control  of  Urban  Authorities   805 

Improvement  Act  Districts   806 

London   807 

School  Districts  , .  810 

Central  Control   812 

The  Government  of  the  English  Colonies  813-831 


xxiv 


TOPICAL  ANALYSIS. 


Sec. 

English  Colonial  Expansion   813 

English  Colonial  Policy   814 

Lord  Durham  in  Canada   816 

The  Self -Governing  Colonies   817 

The  Government  of  Canada   818 

The  Governments  of  Australia   825 

The  Powers  of  the  Colonial  Courts   826 

The  Crown  Colonies   827 

Powers  of  Colonial  Governors   828 

India   829 

Greater  Britain   831 

XI.  The  Government  of  the  United  States  832-1120 

The  English  Occupation  of  America   832 

Adaptation  of  English  Institutions   833 

The  New  England  Colonies   835 

The  Separate  Towns   837 

Union  of  the  Towns   838 

Forms  of  Town  Government   839 

Colonial  Organization   040 

The  Southern  Colonies   841 

Expansion  without  Separation   842 

Southern  Colonial  Society   843 

Government  of  Colonial  Virginia   844 

Virginia's  Colonial  Assembly   845 

The  Constitutions  of  the  other  Southern  Colo- 
nies  846 

The  Middle  Colonies   847 

The  Charters  :  Massachusetts   848 

The  Connecticut  Charter   849 

Rhode  Island's  Charter   850 

Proprietary  Governments   851 

Direct  Government  by  the  Crown   853 

Development  of  the  Assemblies   854 

Development  of  Constitutional  Liberty  in  the  Colonies . .  856 

Political  Sympathy  of  the  Colonies   857 

American  as  compared  with  English  Constitutional 

Development   858 

Process  of  Growth  in  America  Federation,  in 
England  Consolidation   859 


TOPICAL  ANALYSIS. 


XXV 


Sec. 

Conscious   Development    of   Institutions  in 

America   860 

English  Law  and  Precedent   861 

Union  :  Preliminary  Steps   863 

Separateness  of  the  Colonial  Governments   864 

The  Confederation   865 

The  Articles  of  Confederation   866 

Weakness  of  the  Confederation   867 

Need  of  a  Better  Union   868 

The  Constitution  :  Colonial  Precedents   869 

Character  of  the  New  Government   872 

Character  of  the  Government  Changes  with 

Opinion   873 

Early  Sentiment  towards  the  Union   874 

Early  Tolerance  for  Threats  of  Secession  875 

Growth  of  the  National  Idea   876 

Railroads,  Expansion,  and  War  aid  the 

National  Idea   878 

Slavery  stands  in  the  Way  of  Nation- 
ality  879 

Civil  War  completes  the  Union   880 

Present  Character  of  the  Union  881 

Present  Character  of  the  Government 

of  the  Union   882 

The  States  not  Administrative  Di- 
visions but  Constituent  Members 

of  the  Union   884 

Character,  Organs,  and  Functions  of  the  States  885-1044 

The  Law  of  the  States:  its  Character   886 

Functions  of  the  State  Courts  with  Regard  to  the 

Interpretation  of  Federal  Law   888 

Scope  of  State  Law   889 

Legislative  Powers  of  the  Union   890 

Powers  withheld  from  the  States     891 

Powers  left  with  the  States   892 

Non-Constitutional  Provisions  in  State  Constitu- 
tions   894 

Distrust  of  Legislation   895 

Objections  to  the  Practice   896 

Constitutional  Amendments   898 


XXVI 


TOPICAL  ANALYSIS. 


Sec. 

In  England,  France,  and  Germany   899 

Preliminary  Steps  of  Amendment   900 

Proposal  of  Amendments   901 

Conflict  of  Laws   904 

Detrimental  Effects   905 

In  the  Matter  of  Taxation   906 

In  the  Criminal  Law   907 

Bankruptcy   908 

Proposals  of  Eeform   909 

Evils  of  the  Case  easily  exaggerated   910 

Louisiana  and  New  Mexico   911 

Interstate  Law  :  Commerce   912 

Posts  and  Telegraphs   913 

Citizenship   915 

Elements  of  Confusion   917 

Naturalization   918 

In  Germany  and  Switzerland   919 

Citizenship  under  a  Confederation   920 

Central  Governments  of  the  States   921 

The  State  Legislatures  :  their  Powers   923 

Limitations  of  Length  of  Session,  etc   924 

Other  Limitations   925 

State  Legislatures  not  Sovereign  Bodies   927 

Legislative  Organization .    928 

Reasons  for  Two  Houses  in  State  Legisla- 
tures   929 

Historical  Precedents   931 

Terms  of  Senators  and  Representatives . . .  932 

Names  of  the  Houses   933 

Qualifications  of  Senators  and  Representa- 
tives   934 

Legislative  Procedure   935 

Standing  Committees   936 

The  Suffrage   937 

The  State  Courts   940 

Common  Law  Courts :  (1)  Justices  of  the  Peace  944 

(2)  County  or  Municipal  Courts   945 

(3)  Superior  Courts   946 

(4)  Supreme  Courts   948 

(5)  Supremest  Courts   949 


TOPICAL  ANALYSIS.  Xxvii 

8bc. 

Courts  of  Equity   954 

Fusion  of  Law  and  Equity   955 

Probate  Courts   957 

Judges   959 

Qualifications  of  Judges   961 

Ministerial  Officers  of  the  State  Courts   962 

The  State  Executives   964 

Terms  of  Office  of  Governor  and  Lieutenant 

Governor   967 

Qualifications  of   Governor  and  Lieutenant 

Governor    968 

Terms  of  Other  Officers   969 

Contrast  between  State  and  Federal  Execu- 
tives   972 

Real  Character  of  a  State  "  Executive  "...  974 
Relations  of  the  Local  to  the  Central 
Organs  of  Government  in  the  States  976 

The  Governor   978 

The  Secretary  of  State   982 

The  Comptroller  or  Auditor   989 

The  State  Treasurer   990 

The  State  Superintendent  of  Education   992 

Constitutional   Difi'usion   of   the  Executive 

Power   993 

Full  Legal  but  no  Hierarchical  Control. . .  994 

Local  Government :  General  Characteristics   995 

Duties  of  Local  Government   996 

Local  Varieties  of  Organization   997 

The  Township  :  its  Historical  Origin   999 

Absorption  of  the  Town  in  Larger  Units 

of  Government   1001 

Town-Meeting   1003 

The  Town  Officers   1004 

The  Township  of  the  Northwest   1006 

Its  Origin   1009 

Spread  of  Township  Organization   1010 

Township  Organization . . .  ^   1012 

The  Township  in  the  Middle  At- 
lantic States   1019 

The  New  York  Township   1020 


xxviii 


TOPICAL  ANALYSIS. 


Bec. 

The  Pennsylvania  Township   1021 

Origins  of  Local  Government 

in  the  Middle  States   1022 

The  Township  of  the  South   1023 

The  Virginia  Township   1024 

The  County   1025 

The  Southern  County   1028 

Where  the  Township  exists   1029 

Villages,  Boroughs,  Cities   1030 

The  Authorities  of  Urban  Districts   1033 

A  Common  Model  of  Organization. . .  1034 

Organization  of  Government  in  Cities ....  1035 

School  Administration   1038 

In  the  Northwest   1040 

Taxation   1042 

General  Remarks  on  Local  Government   1044 

The  Federal  Government:  the  Constitution   1045 

Amendment  of  the  Constitution   1045 

Amendment  of  Foreign  Constitutions   1046 

The  Federal  Territory   1047 

The  District  of  Columbia   1048 

Arsenals  and  Dockyards   1051 

The  Territories   1052 

Post-offices,  Custom-houses,  etc   1053 

Congress   1054 

The  Senate   1055 

The  Vice-President  of  the  United  States   1060 

Organization  of  the  Senate   1061 

Influence  of  the  Standing  Committees   1062 

The  Senate  and  the  Executive   1063 

The  President  pro  Tempore   1064 

The  House  of  Representatives   1065 

Apportionment  of  Representatives   1066 

Elections  to  the  House   1067 

The  Fourteenth  Amendment   1070 

Organization  of  the  House   1071 

Acts  of  Congress   1077 

The  Federal  Judiciary  :  its  Jurisdiction  . .  1082 

Pov.er  of  Congress  over  the  Judiciary   1084 

The  Existing  Federal  Courts   1085 


TOPICAL  ANALYSIS.  xxix 

Sec. 

The  Division  of  Jurisdiction   1086 

In  Criminal  Cases   1087 

The  Federal  Jud^^es   1088 

The  District  Attornej^  and  the  Marshal   1091 

The  Courts  of  tlie  District  of  Columbia  and  of  the 

Territories   1093 

Procedure  of  a  Federal  Court   1095 

The  Federal  Executive   1097 

Election  of  a  President   1098 

Practical  Operation  of  the  Plan:  the  Party 

Conventions   1099 

Qualifications  for  the  Oftice  of  President   1100 

Duties  and  Powers  of  the  President   1102 

Reform  of  Methods  of  Appointment  to  Fed- 
eral Offices   1104 

The  Presidential  Succession   1106 

Relations  of  the  Executive  to  Congress   1107 

The  Executive  Departments   1109 

Department  of  State     1111 

Department  of  the  Treasury   1112 

The  Bureau  of  Printing  and  Engraving. . .  1113 

Department  of  War   1114 

Department  of  the  Navy   1115 

Department  of  Justice   1116 

Post  Office  Department   1117 

Department  of  the  Interior   1118 

Department  of  Agriculture   1119 

Department  of  Labor   1120 

Interstate  Commerce  Commission   1120 

Civil  Service  Commission   1120 

Commission  of  Fish  and  Fisheries   1120 

XII.   Summary  :  Constitutional  and  Administrative  Develop- 
ments 1121-1153 

Continuity  of  Development   1121 

The  Order  Discoverable  in  Institutional  Development.  1122 

Course  of  Development  in  the  Ancient  World   1123 

The  Feudal  System  and  the  Modern  Monarch   1124 

England's  Contribution   1125 

The  Romans  and  the  English   1126 


XXX 


TOPICAL  ANALYSIS. 


Sbc, 

Likenesses  between  the  Two  Imperial  Nations   1127 

Popular  Initiative  in  Rome  and  England   1128 

Rome's  Change  of  System  under  the  Empire   1129 

Fundamental  Contrast  between  English  and  Roman 

Political  Method   1130 

The  Development  of  Legislatures   1131 

Powers  of  a  Representative   1133 

Scope  of  Modern  Legislation   1134 

The  Making,  Execution,  and  Interpretation  of  Law   1135 

Charters  and  Constitutions   1137 

Creation  vs.  Confirmation  of  Liberties  by  Constitution  1139 

The  Modern  Federal  State  contrasted  with  Confederations  1141 

Distinguishing  Marks  of  the  Federal  State   1144 

Existing  Parallels  and  Contrasts  in  Organization   1147 

Administrative  Integration :  Relation  of  Ministers  to 

the  Head  of  the  Executive   1 148 

Relations  of  the  Administration  as  a  Whole  to  the 

Ministers  as  a  Body   1150 

The  Administration  and  the  Legislature   1151 

XIII.  The  Nature  and  Forms  of  Government  1154-1181 

Government  rests  upon  Authority  and  Force     1154 

Not  Necessarily  upon  Obvious  Force   1155 

The  Governing  Force  in  Ancient  and  in  Modern  Society  1156 
The  Force  of  the  Common  Will  in  Ancient  Society  1157 

Public  Opinion,  Ancient  and  Modern   1158 

The  True  Nature  of  Government   1159 

Society  an  Organism,  Government  an  Organ   1160 

The  Forms  of  Government:  their  Significance   1161 

Aristotle's  Analysis  of  the  Forms  of  Government   1162 

Cycle  of  Degeneracy  and  Revolution   1164 

Modern  Contrasts  to  the  Aristotelian  Forms  of  Govern- 
ment   1165 

The  Modern  Absolute  Monarchy   1166 

The  Modern  Monarchy  usually  '  Limited '   1168 

Is  Monarchy  now  succeeded  by  Aristocracy  ?   1169 

English  and  Ancient  Aristocracy  contrasted   1170 

Present  and  Future  Prevalence  of  Democracy   1171 

Difierences  of  Form  between  Ancient  and  Mod- 
ern Democracies   1172 


TOPICAL  ANALYSIS.  XXxi 

Sec. 

Nature  of  Democracy,  Ancient  and  Modern. . .  1173 

Growth  of  the  Democratic  Idea   1174 

Subordination  of   the  Individual  in  the 

Ancient  State   1175 

Individualism  of  Christianity  and  Teutonic 

Institutions   1176 

The  Transitional  Feudal  System   1177 

Kise  of  tlie  Modern  State   1178 

Renaissance  and  Reformation   1179 

The  Modern  Force  of  Majorities   1180 

New  Character  of  Society   1181 

XIV.  Law:  its  Nature  and  Development  1182-1229 

What  is  Law?   1182 

The  Development  of  Law:  its  Sources    1183 

1.  Custom  ,   1184 

2.  Religion   1186 

3.  Adjudication   1187 

4.  Equity   1189 

5.  Scientific  Discussion   1191 

6.  Legislation   1192 

Custom  Again   1194 

Typical  Character  of  Roman  and  English  Law   1196 

The  Order  of  Legal  Development   1197 

The  Forces  Operative  in  the  Development  of  Law   1200 

The  Power  of  the  Community  must  be  behind  Law  1202 

Roman  Law  an  Example   1205 

The  Power  of  Habit   1206 

Law's  Utterance  of  National  Character   1207 

Germanic  Law   1208 

Sovereignty  :  Who  gives  Law  ?   1209 

Certain  Legal  Conceptions  Universal   1212 

Law  and  Ethics   1213 

Mala  Prohihita   1214 

International  Law   1216 

Laws  of  Nature  and  Laws  of  the  State   1218 

Limitations  of  Political  Law   1219 

Public  Law   1220 

Private  Law   1221 

Jurisprudence  ,  1223 


xxxii 


TOPICAL  ANALYSIS. 


Sec. 

The  Analytical  Account  of  Law   1226 

The  Analytical  Account  of  Sovereignty   1227 

Summary   1229 

XV.  The  Functions  of  Government  1230-1264 

What  are  the  Functions  of  Government  ?   1230 

The  Nature  of  the  Question   1231 

Classification   1232 

I.  The  Constituent  Functions   1233 

II.  The  Ministrant  Functions   123-1 

History  of  Governmental  Function  :  Province  of  the 

Ancient  State   1236 

Koman  Conception  of  Private  Rights   1238 

Powers  of  Roman  Senate   1240 

Government  the  Embodiment  of  Society   1241 

Feudalism:  Functions  of  Government  Functions 

of  Proprietorship   1242 

The  Feudal  Monarchy   1243 

Modern  De-socialization  of  the  State   1244 

More  Changes  of  Conception  than  of  Practice. . . .  1245 
Functions  of  Government  much  the  Same  now 

as  always   1246 

The  State's  Relation  to  Property   1247 

In  Sparta   1248 

Peculiar  Situation  of  the  Spar- 
tans  1249 

Decay  of  the  System   1250 

In  Athens   1251 

In  Rome   1252 

Under  Modern  Governments   1253 

The  State  and  Political  Rights   1254 

As  regards  the  State's  Ministrant  Func- 
tions   1255 

The  State  in  Relation  to  Trade   1256 

The  State  in  Relation  to  Labor   1257 

Regulation  of  Corporations   1258 

The  State  and  Public  Works   1259 

Administration  of  the  Conveniences  of 

Society   1260 

Sanitation   1261 


TOPICAL  ANALYSIS.  XXxiii 

Sec. 

Public  Education   1262 

Sumptuary  Laws   1263 

Summary     1264 

XVI.  The  Objects  of  Government  1265-1287 

Character  of  the  Subject   1265 

The  Extreme  Views  held   1266 

Historical  Foundation  for  Opposite  Views   1267 

The  State  a  Beneficent  and  Indispensable  Organ  of  Society  1269 

Socialism  and  the  Modern  Industrial  Organization   1271 

A  Middle  Ground   1272 

The  Objects  of  Society  the  Objects  of  Government. . .  1273 

Natural  Monopolies   1275 

Control  not  necessarily  Administration   1277 

Equalization  of  Competition   1278 

Society  Greater  than  Government  -   1279 

Natural  Limits  to  State  Action   1280 

The  Family  and  the  State   1284 

The  State  and  Education   1285 

Historical  Conditions  of  Governmental  Action   1286 

Summary   1287 


PREFACE. 


The  scope  and  plan  of  this  volume  I  need  not  explain ;  they 
are,  I  trust,  self-evident ;  but  a  word  or  two  of  comment  and 
suggestion  I  would  fain  address  to  those  who  may  use  the  book 
in  class  instruction.  In  preparing  it  I  labored  under  the  dis- 
advantage of  having  had  no  predecessors.  So  far  as  I  have 
been  able  to  ascertain,  no  text-book  of  like  scope  and  purpose 
has  hitherto  been  attempted.  I  was  obliged,  therefore,  to  put 
a  great  deal  into  this  volume  that  I  might  have  omitted  had 
there  been  other  compact  and  easily  accessible  statements  of 
the  details  of  modern  governmental  machinery.  Had  there 
been  other  books  to  which  the  student  might  easily  resort  for 
additional  information,  I  should  have  confined  myself  much 
more  than  I  have  felt  at  liberty  to  do  to  the  discussion  of  gen- 
eral principles  and  the  elaboration  of  parallels  or  contrasts 
between  different  systems.  As  it  was,  I  saw  no  way  of  doing 
adequately  the  work  I  had  planned  without  putting  in  a  great 
deal  of  detail. 

The  book,  as  a  consequence,  is  very  large.  Realizing  this,  I 
have  put  a  great  deal  of  matter,  containing  minor  details  and 
most  of  my  illustrations  and  parallels,  into  small  print,  in  order 
that  any  part  of  such  matter  that  the  teacher  saw  fit  to  omit 
in  class  work  might  be  omitted  without  breaking  the  continuity 
of  the  text.  At  the  same  time,  the  small  print  paragraphs  are 
integral  parts  of  the  text,  not  separated  from  it  as  foot-notes 
would  be,  but  running  along  Avith  it  as  continuously  as  if  they 
were  in  no  way  distinguished  from  the  main  body  of  it. 

In  the  historical  portions  I  have  been  greatly  straitened  for 
space  and  must  depend  upon  the  active  and  intelligent  assist- 


PREFACE. 


XXXV 


ance  of  the  teacher.  Picking  out  governmental  facts,  as  I 
have  done,  from  the  body  of  political  history,  and  taking  for 
granted  on  the  part  of  the  reader  a  knowledge  of  the  full  his- 
torical setting  of  the  facts  I  have  used,  I  have,  of  course,  been 
conscious  of  relying  upon  the  teacher  who  uses  the  volume  to 
make  that  assumption  good  as  regards  his  own  pupils.  Large 
as  the  book  is,  it  will  require  much  supplement  in  the  using. 
I  trust  that  it  will  on  that  account  prove  sufficiently  stimulat- 
ing to  both  pupil  and  teacher  to  make  good  its  claim  to  be  the 
right  sort  of  a  text-book. 

In  hoping  that  the  book  will  be  acceptable  to  teachers  at  the 
present  time  1  have  relied  upon  that  interest  in  comparative 
politics  which  has  been  so  much  stimulated  in  the  English- 
speaking  world  in  very  recent  years.  I  have  meant  that  it- 
should  be  in  time  to  enter  the  doors  of  instruction  now  in  all 
directions  being  opened  wider  and  wider  in  American  colleges 
to  a  thorough  study  of  political  science.  I  believe  that  our 
own  institutions  can  be  understood  and  appreciated  only  by 
those  who  know  somewhat  familiarly  other  systems  of  govern- 
ment and  the  main  facts  of  general  institutional  history.  By 
the  use  of  a  thorough  comparative  and  historical  method,  more- 
over, a  general  clarification  of  views  may  be  obtained.  For 
one  thing,  the  wide  correspondences  of  organization  and  method 
in  government  —  a  unity  in  structure  and  procedure  much 
greater  than  the  uninitiated  student  of  institutions  is  at  all 
prepared  to  find  —  will  appear,  to  the  upsetting  of  many  pet 
theories  as  to  the  special  excellences  of  some  one  government. 
Such  correspondences  having  been  noted,  it  will  be  the  easier 
to  trace  the  differences  which  disclose  themselves  to  their  true 
sources  in  history  and  national  character.  The  differences  are 
in  many  instances  nation-marks ;  the  correspondences  speak 
often  of  common  experiences  bringing  common  lessons,  often 
of  universal  rules  of  convenience,  sometimes  of  imitation. 
Certainly  it  does  not  now  have  to  be  argued  that  the  only 
thorough  method  of  study  in  politics  is  the  comparative  and 


xxxvi 


PREFACE. 


historical.  I  need  not  explain  or  justify  the  purpose  of  this 
volume,  therefore :  I  need  only  ask  indulgence  for  its  faults  of 
execution. 

The  work  upon  which  I  have  chiefly  relied  in  describing 
modern  governments  is  the  great  Handbuch  des  Oeffentlichen 
Bechts  der  Gegemcart  now  being  edited  by  Professor  Heinrich 
Marquardsen  of  the  University  of  Erlangen.  This  invaluable 
collection  of  monographs  on  the  public  law  of  modern  states 
has  been  appearing  in  parts  since  1883  and  is  now  nearing  com- 
pletion. In  most  cases  it  embodied  the  latest  authoritative 
expositions  of  my  subjects  accessible  to  me,  and  I  have  used  it 
constantly  in  my  preparation  of  this  work.  Without  its  assist- 
ance, what  has  been  the  labor  of  three  years  might  have  re- 
quired twice  as  much  time  in  the  doing. 

My  chapter  on  the  government  of  the  United  States  was 
written  before  the  appearance  of  Mr.  Bryce's  great  work,  The 
American  CommomceaWi.  Only  in  one  or  two  minor  points, 
therefore,  have  I  been  able  to  make  use  of  his  invaluable  com- 
mentary. 

To  some  of  my  friends  I  am  under  special  obligations,  of 
which  I  gladly  make  grateful  acknowledgment,  for  that  most 
self-sacrificing  of  services,  the  critical  reading  of  portions  of 
my  manuscript.  This  kindness  was  extended  to  me  by  Pro- 
fessor Herbert  B.  Adams  and  Mr.  J.  M.  Vincent  of  Johns  Hop- 
kins University,  Professor  J.  P.  J ameson  of  Brown  University, 
and  Professor  Munroe  Smith  of  Columbia  College.  To  these 
gentlemen  I  make  my  public  acknowledgments,  together  with 
my  public  condolences,  for  their  connection  with  this  work.  I 
am  sure  that  they  are  responsible  for  none  of  its  inaccuracies 
and  for  many  of  its  excellences. 

WOODROW  WILSON. 

Mlddletown,  Conn., 
August  8,  1889. 


L 


THE  PEOBABLE  ORIGIN  OF  GOVERNMENT. 

1.  Nature  of  the  Question.  —  The  probable  origin  of  gov- 
ernment is  a  question  of  fact,  to  be  settled,  not  by  conjecture, 
but  by  history.  Its  answer  is  to  be  sought  amidst  such  traces 
as  remain  to  us  of  the  history  of  primitive  societies.  Facts 
have  come  down  to  us  from  that  early  time  in  fragments,  many 
of  them  having  been  revealed  only  by  inference,  and  having 
been  built  together  by  the  sagacious  ingenuity  of  scholars 
much  as  complete  skeletons  have  been  reared  by  inspired  natu- 
ralists in  the  light  of  the  meagre  suggestions  of  only  a  fossil 
joint  or  two.  As  those  fragments  of  primitive  animals  have 
been  kept  for  us  sealed  up  in  the  earth's  rocks,  so  fragments 
of  primitive  institutions  have  been  preserved,  embedded  in  the 
rocks  of  surviving  law  or  custom,  mixed  up  with  the  rubbish 
of  accumulated  tradition,  crystallized  in  the  organization  of 
still  savage  tribes,  or  kept  curiously  in  the  museum  of  fact 
and  rumor  swept  together  by  some  ancient  historian.  Limited 
and  perplexing  as  such  means  of  reconstructing  history  may 
be,  they  repay  patient  comparison  and  analysis  as  richly  as  do 
the  materials  of  the  archaeologist  and  the  philologian.  The 
facts  as  to  the  origin  and  early  history  of  government  are  at 
least  as  available  as  the  facts  concerning  the  growth  and  kin- 
ship of  languages  or  the  genesis  and  development  of  the  arts 
and  sciences.  At  any  rate,  such  light  as  w^e  can  get  from  the 
knowledge  of  the  infancy  of  society  thus  meagrely  afforded  us 
is  better  than  that  which  might  be  derived  from  any  a  priori 


2 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


speculations  founded  upon  our  acquaintance  with,  our  modern 
selves,  or  from  any  fancies,  how  learnedly  soever  constructed, 
that  we  could  weave  as  to  the  way  in  which  history  might 
plausibly  be  read  backwards. 

2.  Races  to  be  studied:  the  Aryans. — For  purposes  of 
widest  comparison  in  tracing  the  development  of  government 
it  would  of  course  be  desirable  to  include  in  a  study  of  early 
society  not  only  those  Aryan  and  Semitic  races  which  have 
played  the  chief  parts  in  the  history  of  the  world,  but  also 
every  primitive  tribe,  whether  Hottentot  or  Iroquois,  Finn  or 
Turk,  of  whose  institutions  and  development  we  know  any- 
thing at  all.  Such  a  world-wide  survey  would  be  necessary 
to  any  induction  which  should  claim  to  trace  government  in 
all  its  forms  to  a  common  archetype.  But,  practically,  no 
such  sweeping  together  of  incongruous  savage  usage  and  tra- 
dition is  needed  to  construct  a  safe  text  from  which  to  study 
the  governments  that  have  grown  and  come  to  full  flower  in 
the  political  world  to  which  we  belong.  In  order  to  trace  the 
lineage  of  the  European  and  American  governments  which 
have  constituted  the  order  of  social  life  for  those  stronger  and 
nobler  races  which  have  made  the  most  notable  progress  in 
civilization,  it  is  essential  to  know  the  political  history  of  the 
Greeks,  the  Latins,  the  Teutons,  and  the  Celts  principally,  if 
not  only,  and  the  original  political  habits  and  ideas  of  the 
Aryan  and  Semitic  races  alone.  The  existing  governments  of 
Europe  and  America  furnish  the  dominating  types  of  to-day. 
To  know  other  systems  that  are  defeated  or  dead  would  aid 
only  indirectly  towards  an  understanding  of  those  which  are 
alive  and  triumphant,  as  the  survived  fittest. 

3.  Semitic  and  Turanian  Instance.  —  Even  Semitic  insti- 
tutions, indeed,  must  occupy  only  a  secondary  place  in  such 
inquiries.  The  main  stocks  of  modern  European  forms  of 
government  are  Aryan.  The  institutional  history  of  Semitic 
or  Turanian  peoples  is  not  so  much  part  of  the  history  of  those 
governments  as  analogous  to  it  in  many  of  the  earlier  stages 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


3 


of  development.  Aryan^  Semitic,  and  Turanian  races  alike 
seem  to  have  passed  at  one  period  or  another  through  similar 
forms  of  social  organization.  Each,  consequently,  furnishes 
illustrations  in  its  history,  and  in  those  social  customs  and 
combinations  which  have  most  successfully  survived  the  wreck 
of  change,  of  probable  earty  forms  and  possible  successive 
stages  of  political  life  among  the  others.  Aryan  practice  may 
often  be  freed  from  doubt  by  Semitic  or  Turanian  instance ; 
but  it  is  Aryan  practice  we  principal^  wish  to  know. 

4.  Government  rested  First  upon  Kinship.  —  What  is 
known  of  the  central  nations  of  history  clearly  reveals  the 
fact  that  social  organization,  and  consequently  government 
(which  is  the  \dsible  form  of  social  organization),  originated  in 
kinship.  The  original  bond  of  union  and  the  original  sanction 
for  magisterial  authority  were  one  and  the  same  thing,  namely, 
real  or  feigned  blood  relationship.  In  other  words,  families 
were  the  primitive  states.  The  original  State  was  a  Family. 
Historically  the  State  of  to-day  may  be  regarded  as  in  an 
important  sense  only  an  enlarged  Family  :  ^  State '  is  ^  Family ' 
writ  large. 

5.  Early  History  of  the  Family ;  was  it  originally  Patri- 
archal?—  The  origin  of  government  is,  therefore,  intimately 
connected  with  the  early  history  of  the  family.  But  the 
conclusions  to  be  drawn  from  what  is  known  of  the  begin- 
nings of  the  family  unfortunately  furnish  matter  for  much 
modern  difference  of  opinion.  This  difference  of  opinion  may 
be  definitely  summed  up  in  the  two  following  contrasted 
views :  — 

(1)  That  the  patriarchal  family,  to  which  the  early  history 
of  the  greater  races  runs  back,  and  with  which  that  histor}' 
seems  to  begin,  was  the  family  in  its  original  estate,  —  the 
original,  the  true  archaic  family. 

The  patriarchal  family  is  that  in  which  descent  is  traced  to  a  com- 
mon male  ancestor,  through  a  direct  male  line,  and  in  which  the 
authority  of  rule  vests  in  the  eldest  living  male  ascendant. 


4 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


(2)  That  the  patriarchal  family,  which  is  acknowledged  to 
be  found  in  one  stage  or  another  of  the  development  of  almost 
every  race,  was  a  developed  and  comparatively  late  form  of 
the  family,  and  not  its  first  form,  having  been  evolved  through 
various  stages  and  varieties  of  polyandry  (plurality  of  hus- 
bands) and  of  polygamy  (plurality  of  wives)  out  of  a  possibly 
original  state  of  promiscuity  and  utter  confusion  in  the  rela- 
tions of  the  sexes  and  of  consequent  confusion  in  blood-relation- 
ship and  in  the  government  of  offspring. 

In  brief,  it  is  held  on  the  one  hand  that  the  patriarchal 
family  was  the  original  family ;  and  on  the  other,  that  it  was 
not  the  original  but  a  derived  form,  others  of  a  less  distinct 
organization  preceding  it. 

6.  The  Evidence  :  India.  —  As  has  been  intimated,  the  evi- 
dence upon  which  the  first-named  view  is  based  is  drawn  chiefly 
from  the  history  of  what  I  have  called  the  central  races  of  the 
world,  —  those  Aryan  races,  namely,  which  now  dominate  the 
continents  of  Europe  and  America,  and  which,  besides  fringing 
Africa  with  their  intrusive  settlements,  have  long  since  returned 
upon  the  East  and  reconquered  much  of  their  original  home 
territory  in  Asia.  In  India  the  English  have  begun  of  late 
years  to  realize  more  fully  than  before  that  they  are  in  the 
midst  of  fellow- Aryans  whose  stayed  civilization  and  long-crys- 
tallized institutions  have  kept  them  back  very  near  to  their 
earliest  social  habits.  In  the  caste  system  of  India  much  of 
the  most  ancient  law  of  the  race,  many  of  its  most  rudimentary 
conceptions  of  social  relationships,  have  stuck  fast,  caught  in 
a  crust  of  immemorial  observance.  Many  of  the  corners  of 
India,  besides,  contain  rude  village-communities  whose  isola- 
tion, weakness,  or  inertia  have  delayed  them  still  nearer  the 
starting-point  of  social  life.  Among  these  belated  Aryans  all 
the  plainer  signs  point  to  the  patriarchal  family  as  the  family 
of  their  origin. 

7.  Slavonic  Communities,  Ancient  Irish  Law,  and  Old 
Teutonic  Customs.  —  In  Kussia,  in  Dalmatia,  and  in  Croatia 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


5 


there  still  survive  Slavonic  village-communities  of  a  very 
primitive  type  which  give  equally  unequivocal  testimony  of 
the  patriarchal  organization  as  the  original  order  of  their  social 
life.  Ancient  Irish  law  says  the  same  thing  of  the  archaic 
forms  of  social  organization  among  the  Aryan  Celts  :  that  the 
patriarchal  family  was  the  first  political  unit  of  the  race.  And 
to  these  the  antique  Teutonic  community,  still  to  be  seen 
through  all  the  changes  of  history  in  England  and  on  the 
continent,  adds  the  testimony  of  many  customs  of  land  tenure 
and  of  communal  solidarity  founded  upon  a  clear  tradition  of 
kinship  derived  from  a  common  ancestor. 

8.  Greek  and  Roman  Families.  —  Besides  these  compara- 
tively modern  evidences  of  survived  law  and  custom,  we  have, 
as  clearer  evidence  still,  the  undoubted  social  beginnings  of 
Greek  and  Eoman  politics.  They  too  originated,  if  history 
is  to  be  taken  at  its  most  plainly  written  word,  in  the  patriar- 
chal family.  Roman  law,  that  prolific  mother  of  modern  legal 
idea  and  practice,  has  this  descent  from  the  time  when  the 
father  of  the  family  ruled  as  the  king  and  high  priest  of  his 
little  state  impressed  upon  every  feature  of  it.  Greek  insti- 
tutions speak  hardly  less  distinctly  of  a  similar  descent.  These 
great  classic  Aryan  stocks,  at  any  rate,  cannot  be  conclusively 
shown  to  have  known  any  earlier  form  of  social  practice  than 
that  of  the  patriarchal  family. 

9.  A  Doubt.  —  Still,  even  Aryan  institutions  bear  some  ob- 
scure traces  —  traces  of  a  possible  early  confusion  in  blood- 
relationships  —  which  suggest  a  polity  not  patriarchal ;  and 
those  who  regard  the  patriarchal  family  as  a  comparatively 
late  development  point  to  these  traces  with  the  suggestion  that 
they  are  possibly  significant  of  the  universal  applicability  of 
their  own  view  as  to  the  archaic  types  of  society.  Even  where 
such  traces  are  most  distinct,  however,  in  legend  and  custom, 
they  are  by  no  means  so  distinct  as  to  necessitate  a  doubt  as 
to  the  substantial  correctness  of  the  patriarchal  theory.  They 
are  all  susceptible  of  explanations  which  would  sustain,  or  at 
least  not  impair,  that  theory. 


6 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT, 


10.  The  Non-Aryan  Family.  —  All  the  really  substantial 
evidence  of  the  absence  from  early  society  of  anything  like 
definite  forms  of  the  family,  based  upon  clear  kinship  such  as 
is  presupposed  in  the  patriarchal  theory,  is  drawn  from  what, 
from  our  present  point  of  view,  we  may  call  the  outlying 
races,  —  the  non- Aryan  races.  Many  of  these  races  have  re- 
mained stationary,  evidently  for  centuries,  in  what,  comparing 
their  condition  with  our  own,  we  call  a  savage  state,  in  which 
there  is  good  reason  to  believe  that  very  early  systems  of  social 
order  have  been  perpetuated.  In  such  cases  evidences  abound 
of  the  reckoning  of  kinship  through  mothers  only,  as  if  in 
matter-of-coui'se  doubt  as  to  paternity ;  of  consanguinity  signi- 
fied throughout  the  wide  circle  of  a  tribe,  not  by  real  or  sup- 
posed common  descent  from  a  human  ancestor,  but  by  means 
of  the  fiction  of  common  descent  from  some  bird  or  beast,  from 
which  the  tribe  takes  its  name,  as  if  for  lack  of  any  better 
means  of  determining  common  blood ;  of  marriages  of  brothers 
with  sisters,  and  of  groups  of  men  with  groups  of  women,  or 
of  groups  of  men  with  some  one  woman.  In  the  case  of  some 
of  these  tribes,  moreover,  among  whom  polygamy  or  even  mo- 
nogamy now  exists,  together  with  a  patriarchal  discipline,  it  is 
thought  to  be  possible  to  trace  clear  indications  of  an  evolution 
of  these  more  civilized  forms  of  family  organization  from  ear- 
lier practices  of  loose  multiple  marriages  or  even  still  earlier 
promiscuity  in  the  sexual  relation. 

It  is  thus  that  color  of  probability  is  given  to  the  view  that 
the  patriarchal  family,  in  these  cases  almost  certainly,  has  in 
all  cases  possibly  been  developed  from  such  originals. 

11.  Aryan  Tradition.  —  These  proofs,  however,  reach  the 
Aryan  races  only  by  doubtful  inference,  through  rare  and  ob- 
scure signs.  Xo  belief  is  more  deeply  fixed  in  the  traditions 
of  these  stronger  races  than  the  belief  of  direct  common  de- 
scent, through  males,  from  a  common  male  ancestor,  human  or 
divine  ;  and  nothing  could  be  more  numerous  or  distinct  than 
the  traces  inhering  in  the  very  heart  of  their  polity  of  an 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT.  7 

original  patriarchal  organization  of  the  family  as  the  archetype 
of  their  political  order. 

12.  From  the  Patriarchal  Family  to  the  State.  —  The  patri- 
archal family  being  taken,  then,  as  the  original  political  unit 
of  these  races,  we  have  a  sufficiently  clear  picture  of  the  in- 
fancy of  government.  First  there  is  the  family  ruled  by  the 
father  as  king  and  priest.  There  is  no  majority  for  the  sons 
so  long  as  their  father  lives.  They  may  marry  and  have  chil- 
dren, but  they  can  have  no  entirely  separate  and  independent 
authority  during  their  father's  life  save  such  as  he  suffers  them 
to  exercise.  All  that  they  possess,  their  lives  even  and  the 
lives  of  those  dependent  upon  them,  are  at  the  disposal  of  this 
absolute  father-sovereign.  The  family  broadens  in  time  into 
the  '  House,'  the  gens,  and  over  this  too  the  chief  est  kinsman 
rules.  There  are  common  religious  rites  and  observances 
which  the  gens  regards  as  symbolic  of  its  unity  as  a  composite 
family ;  and  heads  of  houses  exercise  high  representative  and 
probably  certain  imperative  magisterial  functions  by  virtue  of 
their  position.  Houses  at  length  unite  into  tribes ;  and  the 
chieftain  is  still  hedged  about  by  the  sanctity  of  common  kin- 
ship with  the  tribesmen  whom  he  rules.  He  is,  in  theory  at 
least,  the  chief  kinsman,  the  kinsman  in  authority.  Finally, 
tribes  unite,  and  the  ancient  state  emerges,  with  its  king,  the 
father  and  priest  of  his  people. 

13.  Prepossessions  to  be  put  away.  —  In  looking  back  to 
these  first  stages  of  political  development,  it  is  necessary  to 
put  away  from  the  mind  certain  prepossessions  which  are  both 
proper  and  legitimate  to  modern  conceptions  of  government, 
but  which  could  have  found  no  place  in  primitive  thought  on 
the  subject.  It  is  not  possible  nowadays  to  understand  the 
early  history  of  institutions  without  thus  first  divesting  the 
mind  of  many  conceptions  most  natural  and  apparently  most 
necessary  to  it.  The  centuries  which  separate  us  from  the 
infancy  of  society  separate  us  also,  by  the  whole  length  of 
the  history  of  human  thought,  from  the  ideas  into  which  the 


8 


THE  PROBABLE  ORIGIN  OF  GOYERKMENT. 


fathers  of  the  race  were  born ;  and  nothing  but  a  most  credu- 
lous movement  of  the  imagination  can  enable  the  student  of 
to-day  to  throw  himself  back  into  those  conceptions  of  social 
connection  and  authority  in  which  government  took  its  rise. 

14.  The  State  and  the  Land.  —  How  is  it  possible,  for  in- 
stance, for  the  modern  mind  to  conceive  distinctly  a  travelling 
political  organization,  a  state  without  territorial  boundaries  or 
the  need  of  them,  composed  of  persons,  but  associated  with  no 
fixed  or  certain  habitat  ?  And  yet  such  were  the  early  states,  — 
nomadic  groups,  now  and  again  hunting,  fishing,  or  tending  their 
herds  by  this  or  that  particular  river  or  upon  this  or  that  fa- 
miliar mountain  slope  or  inland  seashore,  but  never  regarding 
themselves  or  regarded  by  their  neighbors  as  finally  identified 
with  any  definite  territory.  Historians  have  pointed  out  the 
abundant  evidences  of  these  facts  that  are  to  be  found  in  the 
history  of  Europe  no  further  back  than  the  fifth  century  of 
our  own  era.  The  Franks  came  pouring  into  the  Roman  em- 
pire just  because  they  had  had  no  idea  theretofore  of  being 
confined  to  any  particular  Frank-Zand.  They  left  no  France 
behind  them  at  the  sources  of  the  Rhine;  and  their  kings 
quitted  those  earlier  seats  of  their  race,  not  as  kings  of  France, 
but  as  kings  of  the  Franks.  There  were  kings  of  the  Franks 
when  the  territory  now  called  Germany,  as  well  as  that  now 
known  as  France,  was  in  the  possession  of  that  imperious  race  : 
and  they  became  kings  of  France  only  when,  some  centuries 
later,  they  had  settled  down  to  the  unaccustomed  habit  of  con- 
fining themselves  to  a  single  land.  Drawn  by  the  processes 
of  f eudalization  (sees.  243,  253,  268, 269),  sovereignty  then  found 
at  last  a  local  habitation  and  a  ncAv  name. 

15.  The  same  was  true  of  the  other  Germanic  nations. 
They  also  had  chiefs  who  were  their  chiefs,  not  the  chiefs  of 
their  lands.  There  were  kings  of  the  English  for  many  a  year, 
even  for  several  centuries  after  a.d.  449,  before  there  was  such 
a  thing  as  a  king  of  England.  John,  indeed,  was  the  first  offi- 
cially to  assume  the  latter  title.    From  the  first,  it  is  true, 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT.  9 

social  organization  has  everywhere  tended  to  connect  itself 
more  and  more  intimately  with  the  land  from  which  each 
social  group  has  drawn  its  sustenance.  When  the  migratory 
life  was  over,  especially,  and  the  settled  occupations  of  agri- 
culture had  brought  men  to  a  stand  upon  the  land  which  they 
were  learning  to  till,  political  life,  like  all  the  other  communal 
activities,  came  to  be  associated  more  and  more  directly  with 
the  land  on  which  each  community  lived.  But  such  a  connec- 
tion between  lordship  and  land  was  a  slowly  developed  notion, 
not  a  notion  twin-born  with  the  notion  of  government. 

16.  Modern  definitions  of  a  state  always  limit  sovereignty 
to  some  definite  land.  "  The  State,"  says  Bluntschli,  is  the 
politically  organized  people  (  Volkperson)  of  a  particular  land  "  ; 
and  all  other  authoritative  writers  similarly  set  distinct  physi- 
cal boundaries  to  the  state.  Such  an  idea  would  not  have  been 
intelligible  to  the  first  builders  of  government.  They  could  not 
have  understood  why  they  might  not  move  their  whole  people, 
^bag  and  baggage,'  to  other  lands,  or  why,  for  the  matter  of 
that,  they  might  not  keep  them  moving  their  tents  and  posses- 
sions unrest ingly  from  place  to  place  in  perpetual  migration, 
without  in  the  least  disturbing  the  integrity  or  even  the  ad- 
ministration of  their  infant  ^  State.'  Each  organized  group 
of  men  had  other  means  of  knowing  their  unity  than  mere 
neighborhood  to  one  another ;  other  means  of  distinguishing 
themselves  from  similar  groups  of  men  than  distance  or  the 
intervention  of  mountain  or  stream.  The  original  governments 
were  knit  together  by  bonds  closer  than  those  of  geography, 
more  real  than  the  bonds  of  mere  contiguity.  They  were  bound 
together  by  real  or  assumed  kinship.  They  had  a  corporate 
existence  which  they  regarded  as  inhering  in  their  blood  and 
as  expressed  in  all  their  daily  relations  with  each  other.  They 
lived  together  because  of  these  relations  ;  they  were  not  related 
because  they  lived  together. 

17.  Contract  versus  Status.  —  Scarcely  less  necessary  to 
modern  thought  than  the  idea  of  territoriality  as  connected 


10 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


with  the  existence  of  a  state,  is  the  idea  of  contract  as  deter- 
mining the  relations  of  individuals.  And  yet  this  idea,  too, 
must  be  put  away  if  we  would  understand  primitive  society. 
In  that  society  men  were  born  into  the  station  and  the  part 
they  were  to  have  throughout  life,  as  they  still  are  among  the 
peoples  who  preserve  their  earliest  conceptions  of  social  order. 
This  is  known  as  the  law  of  status.  It  is  not  a  matter  of 
choice  or  of  voluntar}^  arrangement  in  what  relations  men 
shall  stand  towards  each  other  as  individuals.  He  who  is 
born  a  slave,  let  him  remain  a  slave ;  the  artisan,  an  artisan ; 
the  priest,  a  priest,  —  is  the  command  of  the  law  of  status. 
Excellency  cannot  avail  to  raise  any  man  above  his  parent- 
age ;  aptitude  may  operate  only  within  the  sphere  of  each 
man's  birth-right.  ^^To  man  may  lose  '  caste '  without  losing 
respectability  also  and  forfeiting  the  protection  of  the  law. 
Or,  to  go  back  to  a  less  developed  society,  no  son,  however 
gifted,  may  lawfully  break  away  from  the  authority  of  his 
father,  however  cruel  or  incapable  that  father  may  be  ;  or  make 
any  alliance  which  will  in  the  least  degree  draw  him  away  from 
the  family  alliance  and  duty  into  which  he  was  born.  There 
is  no  thought  of  contract.  Every  man's  career  is  determined 
for  him  before  his  birth.  His  blood  makes  his  life.  To  break 
away  from  one's  birth  station,  under  such  a  system,  is  to  make 
breach  not  only  of  social,  but  also  of  religious  duty,  and  to 
bring  upon  oneself  the  curses  of  men  and  gods.  Primitive 
society  rested,  not  upon  contract,  but  upon  status.  Status  had 
to  be  broken  through  by  some  conscious  or  unconscious  revolu- 
tion before  so  much  as  the  idea  of  contract  could  arise ;  and 
when  that  idea  did  arise,  change  and  variety  were  assured. 
Change  of  the  existing  social  order  was  the  last  thing  of  which 
the  primitive  state  dreamed ;  and  those  races  which  allowed  the 
rule  of  status  to  harden  about  their  lives  still  stand  where  they 
stood  a  thousand  years  ago.  "  The  leaving  of  men  to  have  their 
careers  determined  by  their  efficiencies,"  says  Mr.  Spencer, 
"  we  may  call  the  principle  of  change  in  social  organization." 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT.  11 


18.  Theories  concerning  the  Origin  of  the  State  :  the 
Contract  Theory.  —  Such,  views  of  primitive  society  furnish 
us  with  destructive  dissolvents  of  certain  theories  once  of  almost 
universal  vogue  as  to  the  origin  of  government.  The  most 
famous,  and  for  our  present  purposes  most  important,  of  these 
theories  is  that  which  ascribes  the  origin  of  government  to  a 
*  social  compact '  among  primitive  men. 

The  most  notable  names  connected  with  this  theory  as  used  to  ac- 
count for  the  existence  of  political  society  are  the  names  of  Hooker, 
Hobbes,  Locke,  and  Rousseau.  It  is  to  be  found  developed  in  Hooker's 
Ecclesiastical  Polity,  Hobbes'  Leviathan,  Locke's  Civil  Government,  and 
Rousseau's  The  Social  Contract. 

This  theory  begins  always  with  the  assumption  that  there 
exists,  outside  of  and  above  the  laws  of  men,  a  Law  of  Kature.^ 
Hobbes  conceived  this  Law  to  include  "justice,"  "equity," 
"modesty,"  "mercy  "  ;  "in  sum, ' doing  to  others  as  we  would 
be  done  to.' "  All  its  chief  commentators  considered  it  the 
abstract  standard  to  which  human  law  should  conform.  Into 
this  Law  primitive  men  were  born.  It  was  binding  upon  their 
individual  consciences ;  but  those  consciences  were  overwhelmed 
by  individual  pride,  ambition,  desire,  and  passion,  which  were 
strong  enough  to  abrogate  Nature's  Law.  That  Law,  besides, 
did  not  bind  men  together.  Its  dictates,  if  obeyed,  would  indeed 
enable  them  to  live  tolerably  with  one  another ;  but  its  dictates 
were  not  obeyed ;  and,  even  if  they  had  been,  would  have  fur- 
nished no  permanent  frame  of  civil  government,  inasmuch  as 
it  did  not  sanction  magistracies,  the  setting  of  some  men  to  be 
judges  of  the  duty  and  conduct  of  other  men,  but  left  each 
conscience  to  command  absolutely  its  possessor.  In  the  lan- 
guage of  the  '  judicious  Hooker,'  the  laws  of  Nature  "  do  bind 
men  absolutely,  even  as  they  are  men,  although  they  have 
never  any  settled  fellowship,  never  any  solemn  agreement, 

1  For  the  natural  history  of  this  conception  of  a  Law  of  Nature,  see 
Maine,  Ancient  Law,  Chap.  III.    Also  post,  sees.  208,  209. 


12  THE  PKOBABLE  ORIGIN  OF  GOVERNMENT. 


amongst  themselves  what  to  do  or  not  to  do ;  but  forasmuch 
as  we  are  not  by  ourselves  sufB.cient  to  furnish  ourselves  with 
competent  store  of  things  needful  for  such  a  life  as  our  Nature 
doth  desire,  a  life  fit  for  the  dignity  of  man,  therefore  to  sup- 
ply these  defects  and  imperfections  which  are  in  us  living 
single  and  solely  by  ourselves,  we  are  naturally  induced  to 
seek  communion  and  fellowship  with  others.  This  was  the 
cause  of  men  uniting  themselves  at  first  in  politic  societies."  ^ 
In  other  words,  the  belligerent,  non-social  parts  of  man's  na- 
ture were  originally  too  strong  for  this  Law  of  Nature,  and 
t-he  ^  state  of  nature,'  in  which  that  Law,  and  only  that  Law, 
olfered  restraint  to  the  selfish  passions,  became  practically  a 
state  of  war,  and  consequently  intolerable.  It  was  brought  to 
an  end  in  the  only  way  in  which  such  a  condition  of  affairs 
could  be  brought  to  an  end  without  mutual  extermination, 
namely,  by  common  consent,  by  men's  agreeing  together  mutu- 
ally to  enter  into  one  community  and  make  one  body  politic." 
(Locke.)  This  agreement  meant  submission  to  some  one  com- 
mon authority,  which  should  judge  between  man  and  man ; 
the  surrender  on  the  part  of  each  man  of  all  rights  antago- 
nistic to  the  rights  of  others ;  forbearance  and  co-operation. 
Locke  confidently  affirmed  "  that  all  men  are  naturally  in  that 
state  [a  state,  i.e.,  of  nature],  and  remain  so  till,  by  their  own 
consents,  they  make  themselves  members  of  some  politic  so- 
ciety." It  was  only  as  the  result  of  deliberate  choice,  in  the 
presence  of  the  possible  alternative  of  continuing  in  this  state 
of  nature,  that  commonwealths,  i.e.,  regularly  constituted  gov- 
ernments, came  into  being. 

19.  Traditions  of  an  Original  Law-giver. — Ancient  tra- 
dition had  another  way  of  accounting  for  the  origin  of  laws 
and  institutions.  The  thought  of  almost  every  nation  of 
antiquity  went  back  to  some  single  law-giver  in  whose  hands 
their  government  had  taken  its  essential  and  characteristic 

1  Ecclesiastical  Polity,  Book  I.,  sec.  10. 


THE  PKOBABLE  OKIGIN  OF  GOVERN]MENT.  13 

form,  if  not  its  beginning.  There  was  a  Moses  in  the  back- 
ground of  many  a  history  besides  that  of  the  Jews.  In  the 
East  there  was  Menu ;  Crete  had  her  Minos ;  Athens  her 
Solon ;  Sparta  her  Lycurgus  ;  Kome  her  X uma ;  England  her 
Alfred.  These  names  do  not  indeed  in  every  instance  stand 
so  far  back  as  the  beginning  of  all  government ;  but  they  do 
carry  the  mind  back  in  almost  every  case  to  the  birth  of 
national  systems,  and  suggest  the  overshadowing  influence  of 
individual  statesmen  as  the  creative  power  in  framing  the 
greater  combinations  of  politics.  They  bring  the  conception 
of  conscious  choice  into  the  history  of  institutions.  They 
look  upon  systems  as  made,  rather  than  as  developed. 

20.  Theory  of  the  Divine  Origin  of  the  State. —Xot 
altogether  unlike  these  ancient  conceptions  of  law-givers  tow- 
ering above  other  men  in  wisdom  and  authority,  dominating 
political  construction,  and  possibly  inspired  by  divine  sugges- 
tion, is  that  more  modern  idea  which  attributes  human  govern- 
ment to  the  immediate  institution  of  G-od  himself,  —  to  the 
direct  mandate  of  the  Creator.  This  theory  has  taken  either 
the  definite  form  of  regarding  human  rulers  as  the  direct  vice- 
gerents of  God,  or  the  vague  form  of  regarding  government  as 
in  some  way  given  man  as  part  of  his  original  make-up. 

21.  The  Theories  and  the  Facts.  —  Modern  research  into 
the  early  history  of  mankind  has  made  it  possible  to  recon- 
struct, in  outline,  much  of  the  thought  and  practice  of  primi- 
tive society,  and  has  thus  revealed  facts  which  render  it 
impossible  for  us  to  accept  any  of  these  views  as  adequately 
explaining  what  they  pretend  to  explain.  The  defects  of  the 
social  compact  theory  are  too  plain  to  need  more  than  brief 
mention.  That  theory  simply  has  no  historical  foundation. 
Status  was  the  basis  of  primitive  society  :  the  individual 
counted  for  nothing ;  society  —  the  family,  the  tribe  — 
counted  for  everythiirg.  Government  came,  so  to  say,  before 
the  individual.  There  was,  consequently,  no  place  for  con- 
tract, and  yet  this  theory  makes  contract  the  first  fact  of  social 


14 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


life.  Such  a  contract  as  it  imagines  could  not  have  stood 
unless  supported  by  that  reverence  for  'law'  which  is  an 
altogether  modern  principle  of  action.  The  times  in  which 
government  originated  knew  absolutely  nothing  of  law  as  we 
conceive  law.  The  only  bond  was  kinship,  —  the  common 
blood  of  the  community ;  the  only  individuality  was  the  indi- 
viduality of  the  community  as  a  whole.  Man  was  merged  in 
society.  Without  kinship  there  was  no  duty  and  no  union. 
It  was  not  by  compounding  rights,  but  by  assuming  kinship, 
that  groups  widened  into  states  —  not  by  contract,  but  by 
adoption.  ^STot  deliberate  and  reasoned  respect  for  law,  but 
habitual  and  instinctive  respect  for  authority,  held  men  to- 
gether; and  authority  did  not  rest  upon  mutual  agreement, 
but  upon  mutual  subordination. 

22.  Of  the  theories  of  the  origination  of  government  in  indi- 
vidual law-giving  or  in  divine  dictate,  it  is  sufficient  to  say 
that  the  one  exaggerates  the  part  played  by  human  choice,  and 
the  other  the  part  played  by  man's  implanted  instincts,  in  the 
formation  and  shaping  of  political  society. 

23.  The  Truth  in  the  Theories.  —  Upon  each  of  these 
theories,  nevertheless,  there  evidently  lies  the  shadow  of  a 
truth.  Although  government  did  not  originate  in  a  deliberate 
contract,  and  although  no  system  of  law  or  of  social  order 
was  ever  made  'out  of  hand'  by  any  one  man,  government 
was  not  all  a  mere  spontaneous  growth.  Deliberate  choice  has 
always  played  a  part  in  its  development.  It  was  not,  on  the 
one  hand,  given  to  man  ready-made  by  God,  nor  was  it,  on 
the  other  hand;  a  human  contrivance.  In  its  origin  it  was  spon- 
taneous, natural,  twin-born  with  man  and  the  family ;  Aristotle 
was  simply  stating  a  fact  when  he  said,  "  Man  is  by  nature  a 
political  animal."  But,  once  having  arisen,  government  was 
affected,  and  profoundly  affected,  by  man's  choice ;  only  that 
choice  entered,  not  to  originate,  but  to  modify  government. 

24.  Conclusion.  —  Viewed  in  the  light  of  "the  observed  and 
recorded  experience  of  mankind,"  '"the  ground  and  origin  of 


THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


15 


society  is  not  a  compact ;  that  never  existed  in  any  known  case, 
and  never  was  a  condition  of  obligation  either  in  primitive  or 
developed  societies,  either  between  subjects  and  sovereign,  or 
between  the  equal  members  of  a  sovereign  body.  The  true 
ground  is  the  acceptance  of  conditions  which  came  into  exist- 
ence by  the  sociability  inlierent  in  man,  and  were  developed  by 
man's  spontaneous  search  after  convenience.  The  statement 
that  while  the  constitution  of  man  is  the  work  of  nature,  that 
of  the  state  is  the  work  of  art,  is  as  misleading  as  the  opposite 
statement  that  governments  are  not  made,  but  grow.  The 
truth  lies  between  them,  in  such  propositions  as  that  institu- 
tions owe  their  existence  and  development  to  deliberate  human 
effort,  working  in  accordance  with  circumstances  naturally 
fixed  both  in  human  character  and  in  the  external  field  of  its 
activity."  ^ 


Some  Eepresentative  Authorities. 

Maine,  Sir  H.  S.,  "Ancient  Law,"  and  "Early  Law  and  Custom," 
especially  Chap.  YII. 

Lubbock,  Sir  Jno.,  "Prehistoric  Times,"  and  "Origin  of  Civiliza- 
tion." 

Spencer,  H.,  "Principles  of  Sociology,"  Vol.  I.,  Part  IIL 
Hearn,  Wm.  E.,  "The  Aryan  Household." 
Fustel  de  Coulanges,  "  The  Ancient  City." 
Lyall,  Sir  A.  C,  "Asiatic  Studies." 

With  more  especial  reference  to  the  early  history  of  the  family  than 
the  above,  and  opposed  to  the  views  of  Maine,  Spencer,  and  others 
which  I  have  embodied  in  my  text : 

Morgan,  L.  H.,  "  Ancient  Society." 

McLennan,  J.  F.,  "  Studies  in  Ancient  History,"  and  "  The  Patriarchal 
Theory"  (edited  by  Donald  McLennan). 

-  John  Morley,  Rousseau,  Vol.  XL,  pp.  183-4. 


16  THE  PROBABLE  ORIGIN  OF  GOVERNMENT. 


Smith,  W.  Robertson,  "Kinship  and  Marriage  in  Early  Arabia." 
Lang,  A.     Article  '  Family '  in  the  Encyclopaedia  Britannica,  and 

article  'Early  History  of  the  Family,'  Contemporary  Rev.,  Sept., 

1883. 

With  reference  to  the  contract  theory  of  the  origin  of  government : 

Hooker,  "  Ecclesiastical  Polity." 
Hohhes,  "  Leviathan." 

Locke,  Jno.,  "  Essays  on  Civil  Government." 
Rousseau,  J.  J.,  "The  Social  Contract." 


II. 


THE  PROBABLE  EAELY  DEVELOPMENT  OF 
GOVERNMENT. 

25.  The  Beginnings  of  Government.  —  Government  must 
have  had  substantially  the  same  early  history  amongst  all 
progressive  races.  It  must  have  begun  in  clearly  defined 
family  discipline.  Such  discipline  would  scarcely  be  possible 
among  races  in  which  consanguinity  was  subject  to  profound 
confusion  and  in  which  family  discipline  therefore  had  no 
clear  basis  of  authority  on  which  to  rest.  In  every  case,  it 
would  seem,  the  origination  of  what  we  would  deem  govern- 
ment must  have  awaited  the  development  of  some  such  definite 
family  as  that  in  which  the  father  was  known,  and  known  as 
ruler.  Whether  or  not,  therefore,  the  patriarchal  family  was 
the  first  form  of  the  family,  it  must  have  furnished  the  first 
adequate  form  of  government. 

26.  The  Family  the  Primal  Unit.  —  The  family,  then,  was 
the  primal  unit  of  political  society,  and  the  seed-bed  of  all 
larger  growths  of  government.  The  individuals  that  were 
drawn  together  to  constitute  the  earliest  communities  were 
not  individual  men,  as  Locke  and  Locke's  co-theorists  would 
lead  us  to  believe,  but  individual  families,  and  the  organiza- 
tion of  these  families,  whether  singly  or  in  groups,  furnished 
the  ideas  in  which  political  society  took  its  root.  We  have 
already  seen  what  the  nature  of  that  organization  was.  The 
members  of  each  family  were  bound  together  by  kinship.  The 
father's  authority  bore  the  single  sanction  of  his  being  the 


18 


EARLY  DEVELOPMENT  OF  GOVERNMENT. 


fountain-head  of  tlie  common  blood-relationship.  No  other 
bond  was  known,  or  was  then  conceivable,  but  this  single  bond 
of  kinship.  A  man  out  of  the  circle  of  kinship  was  outside 
the  boundaries  of  possible  friendship,  was  as  of  course  an 
alien  and  an  enemy. 

27.  Persistence  of  the  Idea  of  Kinship.  —  When  society 
grew,  it  grew  without  any  change  of  this  idea.  Kinship  was 
still,  actually  or  theoretically,  its  only  amalgam.  The  com- 
monwealth was  conceived  of  as  being  only  a  larger  kindred. 
When  by  natural  increase  a  family  multiplied  its  branches 
and  widened  into  a  gens,  and  there  was  no  grandfather,  great- 
grandfather, or  other  patriarch  living  to  keep  it  together  in 
actual  domestic  oneness,  it  would  still  not  separate.  The  ex- 
tinct authority  of  the  actual  ancestor  could  be  replaced  by  the 
less  comprehensive  but  little  less  revered  authority  of  some 
selected  elder  of  the  ^  house,'  the  oldest  living  ascendant,  or 
the  most  capable.  Here  Avould  be  the  materials  for  a  complete 
body  politic  held  together  by  the  old  fibre  of  actual  kinship. 

28.  Fictitious  Kinship :  Adoption.  —  Organization  upon 
the  basis  of  a  fictitious  kinship  was  hardly  less  naturally  con- 
trived in  primitive  society.  There  was  the  ready,  and 
immemorial,  fiction  of  adoption,  which  to  the  thought  of  that 
time  seemed  scarcely  a  fiction  at  all.  The  adopted  man  was 
no  less  real  a  member  of  the  family  than  was  he  who  was 
natural-born.  His  admittance  to  the  sacred,  the  exclusive 
religious  mj^steries  of  the  family,  at  which  no  stranger  was 
ever  suffered  even  to  be  present,  and  his  acceptance  of  the 
family  gods  as  his  own  gods,  was  not  less  efficacious  in  making 
him  one  with  the  household  and  the  kin  than  if  he  had  opened 
his  veins  to  receive  their  blood.  And  so,  too,  houses  could 
grow  by  the  adoption  of  families,  through  the  grafting  of  the 
alien  branches  into  this  same  sacred  stock  of  the  esoteric 
religion  of  the  kindred.  Whether  naturally,  therefore,  or  thus 
artificially,  houses  widened  into  tribes,  and  tribes  into  com- 
monwealths without  loss  of  that  kinship  in  the  absence  of 


EARLY  DEVELOPlvrENT  OF  GOVERNMENT.  19 


which,  to  the  thinking  of  early  men,  there  coukl  be  no  com- 
munion, and  therefore  no  community,  at  alL 

29.  Kinship  and  Religion.  —  In  this  development  kinship 
and  religion  operated  as  the  two  chief  formative  influences. 
Keligion  seems  in  most  instances  to  have  been  at  first  only  the 
expression  of  kinship.  The  central  and  most  sacred  worship 
of  each  group  of  men,  whether  family  or  tribe,  was  the 
worship  of  ancestors.  At  the  family  or  communal  altar  the 
worshipper  came  into  the  presence  of  the  shades  of  the  great 
dead  of  his  family  or  race.  To  them  he  did  homage;  from 
them  he  craved  protection  and  guidance.  The  adopted  man, 
therefore,  received  into  this  hallowed  communion  with  the 
gods  of  the  family,  was  accepting  its  fathers  as  his  own,  was 
taking  upon  himself  the  most  solemn  duties  and  acquiring  the 
most  sacred  privileges  of  kinship.  So,  too,  of  the  family 
adopted  into  the  gens,  or  the  gen^  received  into  the  tribe.  The 
new  group  accepted  the  ancestry  by  accepting  the  worship  of 
the  adopting  house  or  community. 

Keligion  was  thus  quite  inseparably  linked  with  kinship.  It 
may  be  said  to  have  been  the  thought  of  which  kinship  was 
the  embodiment.  It  was  the  sign  and  seal  of  the  common 
blood,  the  expression  of  its  oneness,  its  sanctity,  its  obliga- 
tions. He  who  had  entered  into  the  bonds  of  this  religion 
had,  therefore,  entered  into  the  heart  of  kinship  and  taken  of 
its  life-blood.  His  blood-relationship  was  thus  rendered  no 
fiction  at  all  to  the  thought  of  that  day,  but  a  solemn  verity, 
to  which  every  religious  ceremonial  bore  impressive  witness. 

30.  The  Bonds  of  Religion  and  Precedent.  —  The  results 
of  such  a  system  of  life  and  thought  were  most  momentous. 
It  is  commonplace  now  to  remark  upon  English  regard  for 
precedent,  and  upon  the  interesting  development  of  ^com- 
mon '  and  '  case '  law.  But  not  even  an  Englishman  or  an 
American  can  easily  conceive  of  any  such  reverential  regard 
for  precedent  as  must  have  resulted  from  a  canonization  of 
ancestors.    We  have  ourselves  in  a  measure  canonized  our 


20 


EARLY  DEVELOPMENT  OF  GOVERNMENT. 


own  forefathers  of  the  revolutionary  era,  worshipping  them 
around  fourth  of  July  altars,  to  the  great  benefit  both  of  our 
patriotism  and  of  our  political  morality.  But  the  men  of  '76, 
we  are  all  willing  to  acknowledge,  were  at  their  greatest  only 
men.  The  ancestor  of  the  primitive  man  became,  on  the  con- 
trary, a  god,  and  a  god  of  undying  power.  His  spirit  lived  on 
to  bless  or  to  curse.  His  favor  had  to  be  propitiated,  his 
anger  appeased.  And  herein  was  a  terribly  effective  sanction 
for  precedent.  It  was  no  light  matter  to  depart  from  the 
practices  of  these  potent  ancestors.  To  do  so  was  to  run  in 
the  face  of  the  deities.  It  was  to  outrage  all  religious  feeling, 
to  break  away  from  all  the  duties  of  spiritual  kinship.  Pre- 
cedent was  under  such  circumstances  imperative.  Precedent 
of  course  soon  aggregated  into  custom,  —  such  custom  as  it  is 
now  scarcely  possible  to  conceive  of,  —  a  supreme,  uniform, 
imperious,  infrangible  rule  of  life  which  brought  within  its 
inexorable  commands  every  detail  of  daily  conduct. 

31.  The  Reign  of  Custom.  —  This  reign  of  customary  law 
was  long  and  decisive.  Its  tendency  was  to  stiffen  social  life 
into  a  formula.  It  left  almost  no  room  at  all  for  the  play  of 
individuality.  The  family  was  a  despotism,  society  a  routine. 
There  was  for  each  man  a  rigorous  drill  of  conformity  to  the 
custom  of  his  tribe  and  house.  Superstition  strengthened 
every  cord  and  knot  of  the  net-work  of  observance  which 
bound  men  to  the  practices  of  their  fathers  and  their  neigh- 
bors. That  tyranny  of  social  convention  which  men  of  inde- 
pendent or  erratic  impulse  nowadays  find  so  irksome  —  that 
^  t3'ranny  of  one's  next  door  neighbor '  against  which  there  are 
now  and  again  found  men  bold  enough  to  rebel — had  its  ideal 
archetype  in  this  rigid  uniformity  of  custom  which  held 
ancient  society  in  hard  crystallization. 

32.  Fixity  of  System  the  Rule,  Change  the  Exception. — 
Such  was  the  discipline  that  moulded  the  infancy  of  political 
society :  within  the  family,  the  supreme  will  of  the  father ; 
outside  the  family,  the  changeless  standards  of  public  opinion. 


EARLY  DEVELOPMENT  OF  GOVERNMENT. 


21 


The  tendency,  of  course,  was  for  custom  to  become  fixed  in  a 
crust  too  solid  ever  to  be  broken  through.  In  the  majority  of 
cases,  indeed,  this  tendency  was  fulfilled.  Many  races  have 
never  come  out  of  this  tutelage  of  inexorable  custom.  Many 
others  have  advanced  only  so  far  beyond  it  as  those  caste  sys- 
tems in  which  the  law  of  status  and  the  supremacy  of  imme- 
morial custom  have  worked  out  their  logical  result  in  an 
unchanging  balance  of  hereditary  classes.  The  majority  of 
mankind  have  remained  stationary  in  one  or  another  of  the 
earliest  stages  of  political  development,  their  laws  now  consti- 
tuting as  it  were  ancient  records  out  of  which  the  learned  may 
rewrite  the  early  history  of  those  other  races  whom  primitive 
custom  did  not  stagnate,  but  whose  systems  both  of  govern- 
ment and  of  thought  still  retain  many  traces  (illegible  with- 
out illumination  from  the  facts  of  modern  savage  life)  of  a 
similar  infancy.  Stagnation  has  been  the  rule,  progress  the 
exception.  The  greater  part  of  the  world  illustrates  in  its 
laws  and  institutions  what  the  rest  of  the  world  has  escaped ; 
this  rest  of  the  world  illustrates  what  favorable  change  was 
capable  of  making  out  of  the  primitive  practices  with  which 
the  greater  part  of  the  world  has  remained  pe?-  force  content. 

33.  Changes  of  System  outrun  Changes  of  Idea.  —  The 
original  likeness  of  the  progressive  races  to  those  which  have 
stood  still  is  witnessed  by  that  persistency  of  idea  of  which  I 
have  already  spoken.  Progress  has  brought  nations  out  of  the 
primitive  practices  vastly  more  rapidly  than  it  has  brought 
them  out  of  the  primitive  ideas  of  political  society.  Practical 
reform  has  now  and  again  attained  a  speed  that  has  never  been 
possible  to  thought.  Instances  of  this  truth  so  abound  in  the 
daily  history  of  the  most  progressive  nations  of  the  world  of 
to-day  that  it  ought  not  to  be  difficult  for  us  to  realize  its 
validity  in  the  world  of  the  first  days  of  society.  Our  own 
guilds  and  unions  and  orders,  merely  voluntary  and  conven- 
tional organizations  as  they  are,  retain  in  their  still  vivid  sense 
of  the  brotherhood  of  their  members  at  least  a  reminiscence  of 


22 


EARLY  DEVELOPMENT  OP  GOVERNMENT. 


the  ideas  of  that  early  time  when  kinship  was  the  only  con- 
ceivable basis  of  association  between  man  and  man,  when 
"  each  assemblage  of  men  seems  to  have  been  conceived  as  a 
Family."  ^  In  England  political  change  has  made  the  great 
strides  of  the  last  two  centuries  without  making  the  Crown 
any  less  the  central  object  of  the  theoretical  or  lawyerly 
conception  of  the  English  constitution.  Every  day  witnesses 
important  extensions  and  even  alterations  of  the  law  in  our 
courts  under  the  semblance  of  a  simple  application  of  old  rules 
(sees.  201, 1187, 1188).  Circumstances  alter  principles  as  well 
as  cases ;  but  it  is  only  the  cases  which  are  supposed  to  be 
altered.  The  principles  remain,  in  form,  the  same.  Men  still 
carry  their  brides  on  wedding  journeys,  although  the  necessity 
for  doing  so  ceased  with  the  practice,  once  universal,  of  steal- 
ing a  bride.  '  Good  blood '  still  continues  to  work  wonders, 
though  achievement  has  come  to  be  the  only  real  patent  of 
nobility  in  the  modern  world.  In  a  thousand  ways  we  are 
more  advanced  than  we  think  we  are. 

34.  How  did  Change  enter  ?  —  The  great  question,  then,  is, 
How  did  change  enter  at  all  that  great  nursery  of  custom  in 
which  all  nations  once  wore  short  clothes,  and  in  which  so 
many  nations  still  occupy  themselves  with  the  superstitions 
and  the  small  play  of  childhood  ?  How  did  it  come  about 
that  some  men  became  progressive,  while  most  did  not  ?  This 
is  a  question  by  no  means  easy  to  answer,  but  there  are  proba- 
bilities which  may  throw  some  light  upon  it. 

35.  Differences  of  Custom.  —  In  the  first  place,  it  is  not 
probable  that  all  the  groups  of  men  in  that  early  time  had  the 
same  customs.  Custom  was  doubtless  as  flexible  and  malleable 
in  its  infancy  as  it  was  inflexible  and  changeless  in  its  old  age. 
In  proportion  as  group  separated  from  group  in  the  restless 
days  of  the  nomadic  life,  custom  would  become  differentiated 
from  custom.    Then,  after  first  being  the  cause,  isolation 


Maine,  Early  History  of  Institutions,  p.  232. 


EAKLY  DEVELOPMENT  OF  GOVERNMENT.  23 

would  become  the  natural  result  of  differences  of  life  and  be- 
lief. A  family  or  tribe  which,  had  taken  itself  apart  and  built 
up  a  practice  and  opinion  peculiar  to  itself  would  thereby  have 
made  itself  irrevocabl}'  a  stranger  to  its  one-time  kinsmen  of 
other  tribes.  When  its  life  did  touch  their  life,  it  would 
touch  to  clash,  and  not  to  harmonize  or  unite.  There  would 
be  a  Trojan  war.  The  Greeks  had  themselves  come  from  these 
very  ^gean  coasts  of  Asia  Minor,  and  these  Trojans  were 
doubtless  their  forgotten  and  now  alien  kinsmen.  Greeks, 
Romans,  Celts,  had  probably  once  been  a  single  people;  but 
how  unlike  did  they  become  I 

36.  Antagonism  between  Customs.  —  We  need  not  specially 
spur  our  imaginations  to  realize  how  repugnant,  how  naturally 
antagonistic,  to  each  other  families  or  tribes  or  races  would  be 
rendered  by  differences  of  custom,  "  We  all  know  that  there 
is  nothing  that  human  beings  (especially  when  in  a  low  state 
of  culture)  are  so  little  disposed  to  tolerate  as  divergencies  of 
custom,^'  says  Mr.  Hamerton,  who  is  so  sure  of  the  fact  that 
he  does  not  stop  to  illustrate  it.  How  '  odd,"  if  not  '  ridicu- 
lous,' the  ways  of  life  and  the  forms  of  belief  often  seem  to 
us  in  a  foreign  country,  —  how  instinctively  we  pronounce 
them  inferior  to  our  own !  The  Chinaman  manages  his  rice 
much  more  skilfully  with  his  •  chop-sticks '  than  we  manage 
ours  with  our  forks;  and  yet  how  'queer,'  how  'absurd'  chop- 
sticks are  !  And  so  also  in  the  weightier  matters  of  social  and 
religious  practice. 

37.  Competition  of  Customs.  —  To  the  view  of  the  primi- 
tive man  all  customs,  great  or  small,  were  matters  of  religion. 
His  whole  life  was  an  affair  of  religion.  For  every  detail  of 
conduct  he  was  accountable  to  his  gods  and  to  the  religious 
sentiment  of  his  own  people.  To  tolerate  any  practices  differ- 
ent from  those  which  were  sanctioned  by  the  immemorial  usage 
of  the  tribe  was  to  tolerate  impiety.  It  was  a  matter  of  the 
deepest  moment,  therefore,  with  each  tribal  group  to  keep  itself 
uncontaminated  by  alien  custom,  to  stamp  such  custom  out 


24 


EARLY  DEVELOPMENT  OF  GOVERNMENT. 


wherever  or  whenever  it  could  be  discovered.  That  was  a  time 
of  war,  and  war  meant  a  competition  of  customs.  The  con- 
queror crushed  out  the  practices  of  the  conquered  and  com- 
pelled them  into  conformity  with  his  own. 

38.  The  Better  prevail.  —  Of  course  in  such  a  competition 
the  better  custom  would  prevail  over  the  worse.^  The  patri- 
archal family,  with  its  strict  discipline  of  the  young  men  of 
the  tribe,  would  unquestionably  be  "the  best  campaigning 
family,''  —  would  supply  the  best  internal  organization  for  war. 
Hence,  probably,  the  national  aspect  of  the  world  to-day: 
peoples  of  patriarchal  tradition  occupying  in  unquestioned 
ascendency  the  choicest  districts  of  the  earth;  all  others 
thrust  out  into  the  heats  or  colds  of  the  less-favored  conti- 
nents, or  crowded  into  the  forgotten  corners  and  valley-closets 
of  the  world.  So,  too,  with  the  more  invigorating  and  sus- 
taining religions.  Those  tribes  which  were  least  intimidated 
by  petty  phantoms  of  superstition,  least  hampered  by  the 
chains  of  empty  but  imperative  religious  ceremonial,  by  the 
engrossing  observance  of  times  and  seasons,  having  greater 
confidence  in  their  gods,  would  have  greater  confidence  in 
themselves,  would  be  freer  to  win  fortune  by  their  own  hands, 
instead  of  passively  seeking  it  in  the  signs  of  the  heavens  or 
in  the  aspects  of  nearer  nature ;  and  so  would  be  the  surer 
conquerors  of  the  earth.  Eeligion  and  the  family  organiza- 
tion were  for  these  early  groups  of  kindred  men  the  two 
indexes  of  character.  In  them  was  contained  inferiority  or 
superiority.    The  most  serviceable  customs  won  the  day. 

39.  Isolation,  Stagnation. — Absolute  isolation  for  any  of 
these  early  groups  would  of  course  have  meant  stagnation; 
just  as  surely  as  contact  with  other  groups  meant  war.  The 
world,  accordingly,  abounds  in  stagnated  nationalities;  for  it 
is  full  of  instances  of  isolation.  The  great  caste  nations  are 
examples.    It  is,  of  course,  only  by  a  figure  of  speech  that  we 

1  For  the  best  development  of  the  whole  idea  of  this  paragraph  and 
others  in  this  connection,  see  Bagehot,  Physics  and  Politics,  Chap.  II. 


EARLY  DEVELOPMENT  OF  GOVERNMENT. 


25 


can  speak  of  vast  peoples  like  those  of  China  and  India  as 
isolated,  though  it  is  scarcely  a  figure  of  speech  to  say  that 
they  are  stagnated.  Still  in  a  very  real  sense  even  these  popu- 
lous nations  were  isolated.  We  may  say,  from  what  we  dis- 
cern of  the  movements  of  the  nations  from  their  original  seats 
in  Asia,  that  the  races  of  China  and  India  were  the  ^  back-water ' 
from  the  great  streams  of  migration.  Those  great  streams 
turned  towards  Europe  and  left  these  outlying  waters  to  sub- 
side at  their  leisure.  In  subsiding  there  was  no  little  commo- 
tion amongst  them.  There  were  doubtless  as  many  inter-tribal 
wars  in  the  early  history  of  China  before  the  amalgamation  of 
the  vast  kingdom  as  there  have  been  in  the  history  of  India. 
That  same  competition  of  custom  with  custom  which  took  place 
elsewhere,  also  took  place  there.  But  the  tribes  which  pressed 
into  China  were  probably  from  the  first  much  of  a  kind,  with 
differing  but  not  too  widely  contrasted  customs  which  made  it 
possible  for  them  to  assume  at  a  now  very  remote  period  a 
uniformity  of  religion  and  of  social  organization  never  known 
amongst  the  peoples  that  had  gone  to  the  West ;  so  that,  before 
the  history  that  the  rest  of  the  world  remembers  had  begun, 
China's  wall  had  shut  her  in  to  a  safe  stagnation  of  monoto- 
nous uniformity.  The  great  Indian  castes  were  similarly  set 
apart  in  their  vast  peninsula  by  the  gigantic  mountains  which 
piled  themselves  between  them  and  the  rest  of  the  continent. 
The  later  conquests  which  China  and  India  suffered  at  the 
hands  of  Oriental  invaders  resulted  in  mere  overlordships,  which 
changed  the  destination  of  taxes,  but  did  not  touch  the  forms 
of  local  custom. 

40.  Movement  and  Change  in  the  West.  —  It  is  easy  to 
imagine  a  rapid  death-rate,  or  at  least  an  incessant  transforma- 
tion, amongst  the  customs  of  those  races  which  migrated  and 
competed  in  the  West.  There  was  not  only  the  contact  with 
each  other  which  precipitated  war  and  settled  the  question  of 
predominance  between  custom  and  custom  ;  there  was  also  the 
slow  but  potent  leaven  of  shifting  scene  and  changing  circum- 


26  EARLY  DEVELOPMENT  OF  GOVERNMENT. 


stance.  The  movement  of  the  peoples  was  not  the  march  of 
a  host.  It  was  only  the  slow  progress  of  advancing  races,  its 
stages  often  centuries  long,  its  delays  fruitful  of  new  habits 
and  new  aspirations.  We  have,  doubtless,  a  type  of  what  took 
place  in  those  early  days  in  the  transformation  of  the  Greeks 
after  they  had  come  down  to  the  sea  from  the  interior  of  Asia 
Minor.  We  can  dimly  see  them  beginning  a  new  life  there  on 
those  fertile  coasts.  Slowly  they  acquired  familiarity  with 
their  new  neighbor,  the  ocean.  They  learned  its  moods. 
They  imagined  new  gods  as  breathing  in  its  mild  or  storming 
in  its  tempestuous  winds.  They  at  length  trusted  themselves 
to  its  mercy  in  boats.  The  handling  of  boats  made  them  sail- 
ors ;  and,  lured  from  island  to  island  across  that  inviting  sea, 
they  reached  those  later  homes  of  their  race  with  which  their 
name  was  to  be  ever  afterwards  associated.  And  they  reached 
this  new  country  changed  men,  their  hearts  strengthened  for 
bolder  adventure,  their  hands  quick  with  a  readier  skill,  their 
minds  open  to  greater  enthusiasms  and  enriched  with  warmer 
imaginings,  their  whole  nature  profoundly  affected  by  contact 
with  Father  ^geus. 

41.  Migration  and  Conquest.  — And  so,  to  a  greater  or  less 
extent,  it  must  have  been  with  other  races  in  their  movements 
towards  their  final  seats.  Not  only  the  changes  of  circumstance 
and  the  exigencies  of  new  conditions  of  life,  but  also  the  con- 
quests necessarily  incident  to  those  days  of  migration,  must 
have  worked  great,  though  slow,  alterations  in  national  char- 
acter. We  know  the  Latins  to  have  been  of  the  same  stock 
with  the  Greeks;  but  by  the  time  the  Latins  have  reached 
Italy  they  are  already  radically  different  in  habit,  belief,  and 
capacity  from  the  Greeks,  who  have,  by  other  routes,  reached 
and  settled  Magna  Grsecia.  Conquest  changes  not  only  the 
conquered,  but  also  the  conquerors.  Insensibly,  it  may  be,  but 
deeply,  they  are  affected  by  the  character  of  the  subdued  or 
absorbed  races.  Norman  does  not  merge  with  Saxon  without 
getting  Saxon  blood  into  his  own  veins,  and  Saxon  thoughts 


EARLY  DEVELOPMENT  OF  GOVERNMENT.  27 


into  his  head ;  neither  had  Saxon  overcome  Celt  without  being 
himself  more  or  less  taken  captive  by  Celtic  superstition.  And 
these  are  but  historical  instances  of  what  must  have  been  more 
or  less  characteristic  of  similar  events  in  'prehistoric'  times. 

42.  Inter-tribal  Imitation.  —  There  must,  too,  have  been 
among  the  less  successful  or  onh^  partially  successful  races  a 
powerful  tendency  towards  imitation  constantly  at  work,  — 
imitation  of  the  institutions  of  their  more  successful  neighbors 
and  rivals.  Just  as  we  see,  in  the  histories  of  the  Old  Testa- 
ment, frequent  instances  of  peoples  defeated  by  Jewish  arms 
incontinently  forsaking  their  own  divinities  and  humbly  com- 
mending themselves  to  the  God  of  Israel,  so  must  many  another 
race,  defeated  or  foiled  in  unrecorded  wars,  have  forced  them- 
selves to  learn  the  customs  in  order  that  they  might  equal  the 
tactics  of  rival  races. 

43.  Individual  Initiative  and  Imitation.  —  And  this  im- 
pulse towards  imitation,  powerful  as  between  group  and  group, 
would  of  course,  in  times  of  movement  and  conquest,  be  even 
more  potent  as  amongst  individual  men.  Such  times  would 
be  rich  with  opportunity  for  those  who  had  energy  and  enter- 
prise. Many  a  great  career  could  be  carved  out  of  the  events 
of  days  of  steady  achievement.  Men  would,  as  pioneers  in  a 
new  country  or  as  leaders  in  war,  be  more  or  less  freed  from 
the  narrow  restrictions  of  hard  and  fast  custom.  They  could 
be  unconventional.  Their  individual  gifts  could  have  play. 
Each  success  would  not  only  establish  their  right  to  be  them- 
selves, but  would  also  raise  up  after  them  hosts  of  imitators, 
^s'ew  types  would  find  acceptance  in  the  national  life ;  and  so  a 
new  leaven  would  be  introduced.  Individual  initiative  would 
at  last  be  permitted  a  voice,  even  as  against  immemorial 
custom. 

44.  Institutional  Changes:  Choice  of  Rulers. — It  is  easy 
to  see  how,  under  the  bracing  influences  of  race  competition, 
such  forces  of  change  would  operate  to  initiate  and  hasten  a 
progress  towards  the  perfecting  of  institutions  and  the  final 


28  EARLY  DEVELOPMENT  OF  GOVERNMENT. 


abolition  of  slavery  to  habit.  And  it  is  no  less  plain  to  see 
how  such  forces  of  change  would  affect  the  constitution  of 
government.  It  is  evident  that,  as  has  been  said  (sec.  38), 
the  patriarchal  family  did  furnish  the  best  campaigning  mate- 
rials, and  that  those  races  whose  primitive  organization  was  of 
this  type  did  rapidly  come  to  possess  the  "  most-competed-for  " 
parts  of  the  earth.  They  did  come  to  be  the  chief,  the  central 
races  of  history.  But  race  aggregations,  through  conquest  or 
adoption,  must  have  worked  considerable  changes  in  the  politi- 
cal bearings  of  the  patriarchal  principle.  The  direct  line  of 
male  descent  from  the  reputed  common  progenitor  of  the  race 
could  hardly  continue  indefinitely  to  be  observed  in  filling  the 
chieftainship  of  the  race.  A  distinct  element  of  choice  —  of 
election  —  must  have  crept  in  at  a  very  early  period.  The  in- 
dividual initiative  of  which  I  have  spoken,  contributed  very 
powerfully  to  effect  this  change.  The  oldest  male  of  the 
hitherto  reigning  family  was  no  longer  chosen  as  of  course, 
but  the  wisest  or  the  bravest.  It  was  even  open  to  the 
national  choice  to  go  upon  occasion  altogether  outside  this 
succession  and  choose  a  leader  of  force  and  resource  from  some 
other  family. 

45.  Hereditary  replaced  by  Political  Magistracy.  —  Of 

course  mere  growth  had  much  to  do  with  these  transfor- 
mations. As  tribes  grew  into  nations,  by  all  the  processes 
of  natural  and  artificial  increase,  all  distinctness  of  mutual 
blood-relationship  faded  away.  Direct  common  lines  of  de- 
scent became  hopelessly  obscured.  Cross-kinships  fell  into 
inextricable  confusion.  Family  government  and  race  govern- 
ment became  necessarily  divorced,  —  differentiated.  The  state 
continued  to  be  conceived  as  a  Family ;  but  the  headship  of 
this  vast  and  complex  family  ceased  to  be  natural  and  became 
political.  So  soon  as  hereditary  title  was  broken  in  upon,  the 
family  no  longer  dominated  the  state;  the  state  at  last 
dominated  the  family.  It  often  fell  out  that  a  son,  absolutely 
subject  to  his  father  in  the  family,  was  by  election  made  mas- 


EARLY  DEVELOPMENT  OF  GOVERNMENT.  29 

ter  of  his  father  outside  the  family,  in  the  state.  Political 
had  at  least  begun  to  grow  away  from  domestic  authority. 

46.  Summary.  — It  will  be  possible  to  set  forth  the  nature 
of  these  changes  more  distinctly  when  discussing  Greek  and 
Eoman  institutions  at  length  in  the  next  chapter.  Enough 
has  been  said  here  to  make  plain  the  approaches  to  those  sys- 
tems of  government  with  which  we  are  familiar  in  the  modern 
world.  We  can  understand  how  custom  crystallized  about  the 
primitive  man ;  how  in  the  case  of  the  majority  of  mankind 
it  preserved  itself  against  all  essential  change ;  how  with  the 
favored  minority  of  the  race  it  was  broken  by  war,  altered  by 
imperative  circumstance,  modified  by  imitation,  and  infringed 
by  individual  initiative ;  how  change  resulted  in  progress ;  and 
how,  at  last,  kinsmen  became  fellow-citizens. 


Additional  Authorities  on  Primitive  Society. 

Bagehot,  Walter,  "Physics  and  Politics;  or,  Thoughts  on  the  AppUca- 
tion  of  the  Principles  of  Natural  Selection  and  Inheritance  to 
Political  Society." 

Spencer,  Herbert,  "  Ceremonial  Institutions,"  and  "  Political  Institu- 
tions." 

Tylor,  E.  G.,  "Early  History  of  Mankind,"  and  "Primitive  Culture," 
Maine,  Sir  H.  S.,  "  Early  History  of  Institutions,"  and  "Village  Com- 
munities in  the  East  and  West." 


III. 


THE  GOVEKNIVIEKTS  OF  GREECE  AND  ROME. 

47.  The  Evolution  of  Government. — At  no  one  of  the 

various  stages  of  their  development  may  we  photograph  the 
ancient  classical  governments  and  say  that  we  have  an  ade- 
quate picture  of  Greek  or  Roman  political  practice.  We  can- 
not speak  of  the  governments  of  Greece  and  Rome  instructively 
except  as  evolutions.  Their  history  is  of  course  never  com- 
plete at  any  one  period.  Moreover,  each  stage  of  their  develop- 
ment illuminates  the  processes  which  we  have  just  been  dis- 
cussing, the  processes  by  which  the  primitive  constructions  of 
government  were  modified  and  modern  systems  of  government 
approached.  We  may  study  modern  governments  as  they  are  ; 
but  in  order  to  understand  modern  governments  as  they  are  it 
is  necessary  to  know  ancient  and  mediaeval  governments  in  all 
their  successive  periods  of  development. 

(1)  The  Governments  of  Greece. 

48.  The  Patriarchal  Presidencies:  Legislation.  —  We  get 

our  earliest  glimpse  of  Greek  governments  from  Homer.  When 
the  Iliad  and  Odyssey  were  written,  monarchy  was  universal 
throughout  the  Greek  world.  But  not  such  monarchy  as  grew 
up  in  the  later  times  of  classical  political  development  with 
which  we  are  more  familiar.  It  was  monarchy  of  a  kind  which 
no  longer  exists.  It  would  be  more  in  keeping  with  the  mod- 
ern meaning  of  words  to  describe  it  as  a  Patriarchal  Presidency. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  31 

The  kings  of  Homer's  soDgs  were  not  supreme  rulers  who  gave 
law  and  singly  administered  justice  to  their  subjects.  They 
were  chief  nobles,  '  the  first  among  equals,'  presidents  of  coun- 
cils of  peers.  The  early  monarchies  of  Greece  were  not  con- 
stituted of  single  cities,  like  the  later  republics,  but  probably 
of  groups  of  communities  acknowledging  a  common  govern- 
ment. The  centre  of  that  government  was  the  council  of 
Elders  (Gerontes),  heads  of  the  noble  families.  That  council 
was  the  "  king's  council "  only  because  it  convened  at  the  king's 
summons.  He  called  his  peers  to  a  feast.  To  speak  modernly, 
the  dinner-table  was  the  council-board.  State  affairs  were  dis- 
cussed over  the  wine  and  the  viands  :  after  an  informal  manner 
which  suggests  to  the  reader  of  to-day  Friedrich  Wilhelm's 
"  Tobacco  Parliament,"  where  imperial  business  shaped  itself 
as  it  might  through  the  laconic  speech  of  king  and  councillors 
uttered  amidst  the  dense  smoke  of  busy  fuming  pipes.  Here 
the  purposes  and  plans  of  government  originated.  Prussian 
plans,  however,  were  seldom  formal%^  announced :  Greek  plans 
were  almost  always  made  publicly  known.  The  king  summoned 
an  assembly  of  the  people  (assemblies,  that  is,  of  the  gentes, 
the  members  of  the  recognized  immemorial  kinship)  to  hear 
the  decrees  of  the  elders.  The  presidency  of  this  assembly, 
like  the  presidency  of  the  council,  belonged  to  the  king ;  or, 
rather,  the  council  itself,  as  it  were,  presided,  under  the  head- 
ship of  the  king.  The  elders  sat,  that  is,  before  the  assembled 
tribesmen  about  the  person  of  the  king.  The  king  made  known 
the  business  to  be  considered,  and  the  elders,  if  they  chose, 
addressed  the  people  concerning  it.  No  vote  was  taken.  The 
assembly  freely  made  known  its  sentiments  concerning  the 
utterances  of  the  noble  orators  by  noisy  demonstrations  of  agree- 
ment or  disagreement,  and  on  critical  occasions  its  feelings 
no  doubt  counted  for  something ;  but  it  had  no  choice  but  to 
acquiesce  in  the  decisions  of  the  council,  previously  fixed  upon 
at  dinner. 

49.  Tribal  Justice.  —  Such  was  ancient  Greek  legislation. 


32         THE  GOVERNlVtENTS  OF  GREECE  AND  ROME. 

Judicial  proceedings  were  not  radically  different.  In  some  in- 
stances, doubtless,  the  king  dispensed  justice  as  sole  magistrate. 
He  was  generally  the  richest,  as  well  as  officially  the  first,  of 
the  noblemen  of  the  kingdom,  and  as  such  must  have  adjudged 
many  differences  between  his  numerous  personal  retainers  at 
least,  even  if  he  did  not  often  act  as  sole  judge  between  other 
litigants.  But  most  cases  arising  between  men  of  different 
family  groups  were  heard  hj  the  king  and  his  council  in  the 
presence  of  the  people,  much  as  public  business  was  considered, 
each  councillor  being  entitled  to  deliver  his  opinion  in  his  turn, 
and  a  majority  of  voices  probably  controlling. 

50.  Patriarch  and  Priest.  —  I  have  called  this  presidency 
of  the  king  in  state  affairs  a  '  patriarchal '  presidency  because 
it  belonged  to  him  by  hereditary  right,  as  chief  elder  by  direct 
descent  from  the  first  preferred  elder  of  his  people.  The  family 
once  chosen  by  the  gods  to  preside  in  council  and  command  in 
war  was  seldom  set  aside  ;  and  the  usual  succession  by  primo- 
geniture was  rarely  departed  from.  This  president-king,  be- 
sides, had  other  prerogatives  typical  of  a  patriarchal  headship. 
He  was  the  high  priest  of  his  people,  performing  all  those 
sacrifices  and  leading  in  all  those  ceremonials  which  spoke  the 
family  oneness  of  the  nation.  He  was  representative  of  the 
nation  in  its  relations  with  the  gods.  He  was  also  commander- 
in-chief  in  war,  here  again  representing  the  unity  of  the  people 
over  whom  he  presided. 

51.  Not  Lord,  but  Chief.  —  But  here  the  kingly  preroga- 
tives ended.  These  presidential  and  representative  functions 
of  the  early  Greek  king  contained  the  sum  of  his  powers. 
Aside  from  his  presidency  in  legislation  and  in  adjudication, 
his  high  priesthood,  and  his  command  in  war,  he  had  little 
power.  There  was  no  distinct  idea  as  yet  of  personal  alle- 
giance to  the  monarch  on  the  part  of  the  people  at  large.  He 
received  gifts  from  the  people  and  had  the  usufruct  of  the  pub- 
lic domain  for  his  support ;  but  these  were  accorded  him  rather 
as  father  and  typical  head  of  his  nation  than  as  master.  The 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  33 


services  rendered  him  were  largely  voluntary.  He  was  not 
lord,  but  chief  of  his  people. 

52.  The  Primitive  A^/xos.  —  In  one  sense  the  king  was  not 
chief  of  a  people  at  all.  The  Homeric  (demos)  was  not 
a  '  people '  in  the  modern  sense  of  the  term.  It  was  not  an 
association  of  individuals,  but  an  association  of  families,  of 
families  which  had  widened  into  gentes,  but  which  lived  apart 
from  each  other  in  semi-independent  groups,  each  possibly 
clustering  about  its  own  village  and  living  its  own  separate 
cantonal  life.    The  king  was  the  head  of  these  confederated 

*  houses,'  and  the  seat  of  his  authority  was  that  'city'  about 
which  their  confederate  life  centred. 

53.  The  Antique  <  City.'  — This  city  was  as  unlike  as  pos- 
sible to  those  centres  of  population  and  industry  which  are  the 
cities  of  our  own  time.  It  was  very  different  even  from  those 
Greek  cities  of  historical  times  of  which  Athens  may  be  taken 
as  a  type,  and  which  were  the  actual  homes  of  the  ruling 
numbers  of  the  population.  The  city  of  Homer's  day  doubt- 
less contained  the  dwellings  of  the  king  and  his  assistant 
priests,  but  not  many  besides  king  and  priests,  with  their 
families  and  attendants,  lived  in  it.  It  was  generally  a  citadel 
upon  a  hill  to  which  the  confederated  families  living  in  the 
country  round  about  it  resorted  in  times  of  actual  or  threat- 
ened invasion.  It  contained  the  temples  of  the  gods  and  was 
the  seat  of  the  common  worship.  In  it  was  the  market-place, 
also,  in  which  the  trade  of  the  countrj^-side  centred.  It  saw 
the  festivals,  the  sacrifices,  the  councils,  the  courts,  the  armed 
musterings  of  the  people.  But  it  did  not  see  their  daily  life. 
That  was  not  lived  in  common,  but  apart  in  clans.  Each 

*  house'  was  a  complete  independent  organism  in  itself,  with 
a  very,  vital  corporate  existence.  It  "  had  its  assemblies  ;  it 
passed  laws  which  its  members  were  bound  to  obey,  and  which 
the  city  itself  respected.  "  ^    These  assemblies  were  presided 

1  Coulanges,  The  Ancient  City,  p.  137  (Am.  ed.). 


34         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

over  by  an  hereditary  chief  who  was  priest,  judge,  and  military 
commander  of  his  house  —  its  king,  a  chief  among  the  heads 
of  its  branches.  Throughout  the  gens  there  was  the  closest 
brotherhood.  It  had  its  common  family  worship,  its  religious 
festivals,  its  common  burying-place.  Its  members  could  in- 
herit from  each  other,  and  were  ultimately  responsible  for 
each  other's  conduct  and  debts.  They  could  not  accuse  one 
another  before  any  tribunal  but  that  of  their  own  kindred. 
They  stood  together  as  one  family  under  a  complete  family 
government. 

54.  Confederate  Growth  of  Family  Groups.  —  The  mo- 
narchical city  had  not  originated  directly  from  a  confederation 
of  families.  It  had  been  developed  through  a  series  of  other 
combinations,  which,  in  their  religious  functions  at  least,  con- 
tinued to  exist  after  the  city  had  come  into  being.  Gentes 
had  first  of  all  united,  for  the  celebration  of  some  common 
worship,  into  Phratries  or  (in  Latin  term)  curies.  Phratries 
had  combined,  from  like  motives,  into  Tribes.  It  was  by  a 
coming  together  of  Tribes  that  the  city  had  been  formed. 
Each  Phratry  and  Tribe  had  realized  the  family  idea  by  the 
worship  of  the  same  gods,  and  the  canonization  of  some  com- 
mon hero  as  their  eponymous  ancestor  ;  and  each  had  elevated 
a  chief  to  its  presidency  and  high-priesthood.  Each  had  its 
assemblies  and  its  festivals. 

55.  The  <  City  *  a  Confederacy  of  Gentes.  —  But  though 
the  city  was  the  next  step  of  confederation  after  the  tribe,  it 
was  not  tribes,  nor  yet  phratries,  but  gentes  which  were  repre- 
sented in  the  council  of  the  king.  There  vras,  so  to  say,  a 
subsidence  of  political  organization  upon  this  older  foundation 
of  the  family.  In  the  city  the  tribe  continued  to  be  a  unit  of 
worship,  the  phratry  a  unit  of  worship  and  of  military  organi- 
zation; but  only  the  gens  was  a  unit  of  civil  organization. 
The  army  was  grouped  by  phratries,  but  government  was  con- 
stituted by  families. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


35 


56.  "  The  city  was  not  an  assemblage  of  individuals ;  it  was  a  con- 
federation of  several  groups,  which  were  established  before  it,  and 
which  it  permitted  to  remain.  We  see,  in  the  Athenian  orators,  that 
every  Athenian  formed  a  portion  of  four  distinct  societies  at  the  same 
time ;  he  was  a  member  of  a  family,  of  a  phratry,  of  a  tribe,  and  of  a 
city.  He  did  not  enter  at  the  same  time  and  the  same  day  into  all  these 
four,"  like  an  American,  who  at  the  moment  of  his  birth  belongs  at 
once  to  a  family,  a  county,  a  state,  and  a  nation.  "  The  phratry  and 
the  tribe  are  not  administrative  divisions.  A  man  enters  at  different 
times  into  these  four  societies,  and  ascends,  so  to  speak,  from  one  to 
the  other.  First,  the  child  is  admitted  into  the  family  by  the  religious 
ceremony,  which  takes  place  six  days  after  his  birth.  Some  years  later 
he  enters  the  phratry  by  a  new  ceremony.  .  ,  ,  Finally,  at  the  age 
of  sixteen  or  eighteen,  he  is  presented  for  admission  into  the  city. 
On  that  day,  in  the  presence  of  an  altar,  and  before  the  smoking  flesh 
of  a  victim,  he  pronounces  an  oath,  by  which  he  binds  himself,  among 
other  things,  always  to  respect  the  religion  of  the  city.  From  that  day 
he  is  initiated  into  the  public  worship,  and  becomes  a  citizen.  If  we 
observe  this  young  Athenian  rising,  step  by  step,  from  worship  to  wor- 
ship, we  have  a  symbol  of  the  degrees  through  which  human  associa- 
tion has  passed.  The  course  which  this  young  man  is  constrained  to 
follow  is  that  which  society  first  followed."  ^ 

57.  The  Elders.  —  The  real  inner  life  of  government  dwelt, 
therefore,  not  in  the  authority  of  the  king,  but  in  the  power 
vested  in  each  member  of  his  Council.  As  head  of  a  gens, 
each  Elder  exercised  those  prerogatives  of  the  father-sovereign 
about  which,  as  about  a  support,  society  had  attained  all  its 
earliest  growth.  As  a  Council,  the  Elders  were  confederated 
chiefs,  representing  each  a  little  family  sovereignty.  It  is 
not,  perhaps,  a  too  far-fetched  fancy  to  liken  them  to  the 
members  of  our  own  federal  Senate.  Just  as  our  own  Senators 
represent  self-governing  states,  confederated  for  certain  pur- 
poses, so  did  these  Elders  represent  self-governing  family 
groups  joined  in  the  pursuit  of  certain  common  objects.  Of 
course  the  likeness  disappears  the  moment  we  look  outside 
the  Council,  away  from  its  internal  organization.    Our  Sena- 

1  Coulanges,  The  Ancient  Citi/,  pp.  169,  170. 


36         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

tors  are  elected  representatives,  and  have  only  representative 
functions.  They  have  no  official  voice  in  the  direction  of  the 
affairs  of  the  states  which  they  represent.  Those  ancient 
Greek  Elders,  on  the  contrary,  were  hereditary  chiefs,  and  had 
weight  in  the  Council  because  they  were  rulers  at  home  in 
their  several  cantons.  The  language  of  their  day  commonly 
designated  them  '  kings.'  They  were  kings :  the  president 
of  their  Council  was  'the'  king,  their  leader  in  war  and  in 
religious  observance. 

58.  Religion :  the  Priesthood.  —  The  key  to  the  whole 
composition  of  this  early  society  was  its  religion.  The  func- 
tions of  father,  chief,  and  king;  the  constitutions  of  family, 
phratry,  tribe,  and  city  —  all  hung  upon  certain  deep-lying 
religious  conceptions.  The  father  was  first  of  all  high-]Driest 
of  his  house,  the  chief  first  of  all  high-priest  of  his  phratry, 
the  king  first  of  all  high-priest  of  his  city.  Their  other  func- 
tions rather  flowed  from  the  authority  of  their  priesthood  than 
were  added  to  it.  Eeligion  was  the  one  conclusive  motive 
and  sanction  of  all  social  order  in  that  early  time,  as  it  con- 
tinued to  be  for  many  centuries  afterAvards ;  and  the  heads  of 
religion  were  of  course  the  rulers  of  society. 

59.  It  was  the  leading  peculiarity  of  the  religion  of  that 
time  that  each  father,  chief,  and  king  represented  gods  whom 
no  one  else  represented.  The  gods  of  one  family  were  never 
the  gods  of  another  family,  the  gods  of  one  phratry  or  city, 
never  those  of  another  phratry  or  city.  Gods  were  in  that  day 
private,  not  common,  property,  and  were  owned  inalienably. 
Each  high-priest  of  the  series,  therefore,  had  a  peculiarly  sacred 
and  distinctive  character  within  the  group  over  whose  worship 
he  presided,  and  in  that  character  were  contained  the  seeds  of 
all  his  other  prerogatives.  He  was  chief  of  the  religion  of  his 
group ;  and  that  religion  was  the  supreme  rule  of  its  life.  He 
was,  therefore,  its  king;  and  his  office  was  hereditary.  The 
sacred  priesthood  of  the  father  could  be  transmitted  only  by 
natural  succession.    Priests  could  not  be  made,  unless,  in  the 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  37 

providence  of  the  gods,  they  were  not  born.  Then  human 
choice  must  be  resorted  to ;  but  that  choice  must  keep  itself 
as  close  to  the  direct  line  of  the  priestly  stock  as  possible.  It 
must  select  within  the  chosen  family. 

60.  Primogeniture.  —  It  is  because  of  the  rule  of  such  con- 
ceptions of  civil  magistracy,  as  an  authority  resulting  from  the 
priestly  functions  of  the  head  of  each  social  group,  that  we 
find  primogeniture  the  ruling  order  of  succession  alike  to  elder- 
ship, to  chieftainship,  and  to  kingship ;  and  it  is  because  of 
this  same  rule  -of  religious  thought  in  social  organization  that 
we  find  every  magistrate,  even  those  of  the  later  times  when 
magistrates  were  elected,  exercising  some  priestly  function,  as 
if  to  supply  a  necessary  sanction  for  his  civil  powers.  The 
magistrate  was  always  next  to  the  gods,  was  always  their  in- 
terpreter  and  servant. 

61.  The  City^s  Religion.  —  In  every  way  the  political  life 
of  the  city  spoke  of  religion.  There  was  a  city  hearth  in  the 
prytaneum  on  which  a  fire,  sacred  to  the  city's  gods,  was  kept 
ceaselessly  burning ;  there  were  public  repasts  at  which,  if  not 
the  whole  people,  at  least  representatives  daily  sat  down  to 
break  the  sacred  cake  and  pour  out  the  consecrated  wine  to 
the  gods  :  the  council-feast  to  which  the  king  invited  the  Elders 
(sec.  48),  though  also  a  social  feast,  was  itself  first  of  all  a 
sacred,  sacrificial  repast  over  which  the  king  presided  by  virtue 
of  his  priestly  office.  There  were  festivals  at  stated  times  in 
honor  of  the  several  deities  of  the  city  ;  and  the  Council  (which 
at  a  later  day  became  the  Senate)  always  convened  in  a  temple. 
Politics  was  a  religion. 

62.  Decay  of  the  Antique  City.  —  Such  seems  to  have  been 
the  universal  first  model  of  completed  political  society  in  the 
Greek  world.  When  it  comes  within  our  view  in  the  Homeric 
songs,  however,  it  is  already  old  and  near  its  end.  It  was  the 
complete  and  singularly  logical  result  of  that  widening  from 
family  to  tribe  which  had  filled  the  ages  of  human  life  which 
had  gone  before  it.    It  was  the  true  offspring  of  its  long  an- 


38         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

cestry  :  a  greater  faniily  descended  from  a  long  line  of  families. 
But  when  we  catch  our  first  glimpse  of  it,  the  end  of  the  pure 
family  state  is  at  hand.  A  series  of  revolutions  is  about  to 
change  the  whole  organization  of  political  society. 

63.  This  change,  however,  did  not  proceed  everywhere  with 
that  universal  uniformity  which  seems  to  have  characterized 
previous  developments  in  the  Greek  world.  Similar  changes 
were  effected,  indeed,  everywhere ;  but  differing  circumstances 
gave  to  change  a  different  speed  and  a  varying  form  and  se- 
quence in  separated  localities.  It  was  not  so  much  a  continued 
development  as  a  differentiation.  It  will  be  best,  therefore,  to 
continue  our  examination  of  the  further  modification  and  ex- 
pansion of  Greek  institutions  by  studies  of  the  histories  of  the 
particular  cities  of  Greece ;  and  it  is  almost  unavoidable  that 
the  particular  cities  chosen  for  this  purpose  should  be  Athens 
and  Sparta,  inasmuch  as  it  is  only  of  these  two  masterful  cities 
that  Ave  have  anything  like  adequate  knowledge. 

64.  The  City  absorbs  its  Constituent  Parts.  —  There  is, 
however,  one  uniform  process  first  to  be  noted  amongst  all  the 
governments  of  historical  Greece.  City  life  continued  every- 
where ;  but  the  government  was  no  longer  cantonal.  It  was 
municipal.  A  city '  was  no  longer  merely  the  confederate 
centre  of  separated  family  cantons  in  Avhich  the  real  life  of 
the  people  still  dwelt.  That  life  had  become  much  more  largely 
and  truly  a  united  life.  The  city  no  longer  received  its  vitality 
from  the  family  governments  round  about  it ;  they,  rather,  de- 
rived their  significance  from  their  connection  with  the  city. 
The  city  was  now,  instead  of  a  mere  compound  or  aggregate,  a 
whole,  of  which  tribes,  phratries,  and  families  were  parts.  The 
confederation  had,  so  to  say,  swallowed  up  the  confederates. 
The  city,  a  child  of  family  government,  had  subordinated  family 
government  to  itself ;  had  usurped  a  full  supremacy,  making 
its  parents  its  subjects. 

65.  Decline  of  the  Elders*  Separate  Powers. — We  have 
not  the  historical  materials  for  making  quite  plain  the  why 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  39 


and  wherefore  of  this  notable  transformation  in  political  order ; 
but  we  can  see  dimly  some  of  the  causes  which  must  have 
brought  it  about.  By  coming  together  under  the  early  city 
organization  the  aforetime  sovereign  family  governments  neces- 
sarily lost  much  of  their  former  importance.  Confederation 
inevitably  lessens  the  individual  importance  of  the  confederates. 
They  have  no  longer  their  accustomed  separate  prominence ; 
that  has  been  swallowed  up  in  their  aggregate  weight.  How- 
ever small  might  have  been  the  power  of  each  family  group 
when  it  was  dissociated  from  its  neighbors,  its  complete  inde- 
pendence gave  it  a  dignity,  a  cohesiveness,  an  individuality, 
and  a  self-sufficiency  of  which  association  with  others  robbed 
it.  After  the  independence  of  the  family  had  been  curtailed 
by  confederation,  the  strongest  motives  for  preserving  family 
organization  intact  would  be  displaced  by  wider  interests.  The 
generation  which  saw  the  ^  city '  formed  would  of  course  not 
dream  that  family  importance  had  been  in  any  wise  impaired. 
The  Elders  of  the  first  councils  would  abate  not  a  jot  of  their 
hereditary  pride  of  blood  and  of  authority,  but  would  deem 
themselves  as  great  kings  as  ever.  And  in  those  times  of  reluc- 
tantly changing  thought  scarcely  an  element  of  altered  concep- 
tion in  regard  to  these  matters  would  enter  for  generations 
together.  But,  whether  sensibly  or  insensibly,  profound  modi- 
fications both  of  social  thought  and  of  social  practice  would  at 
length  take  place.  Relegated  to  a  subordinate  rank  in  the 
political  order  and  no  longer  obliged  to  preserve  that  constitu- 
tion which  had  been  essential  to  it  while  it  continued  itself  an 
independent  government,  the  gens  would  by  degrees  lose  its 
close  integration  and  compact  organic  structure.  A  kingdom 
within  a  kingdom  is  a  difficult  thing  to  keep  alive.  Its  mem- 
bers are  confused  by  a  service  of  two  masters,  and  end  by  really 
serving  only  one,  —  and  that  the  stronger. 

66.  Political  Disintegration  of  the  Gens.  —  The  family 
died,  therefore,  as  a  political  organization,  for  lack  of  suffi- 
ciently important  functions  to  keep  it  interested  in  itself.  It 


40         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

was  gradually  disintegrated.  In  religion,  indeed,  it  steadily 
remained  one  for  centuries,  formally  at  least,  if  not  practically ; 
but  in  other  things  it  fell  slowly  apart.  Its  branches  became 
by  degrees  more  and  more  independent  of  each  other.  Its 
property  was  no  longer  held  in  common,  but  was  divided  with 
greater  and  greater  freedom,  and  with  less  and  less  regard  for 
that  law  of  primogeniture  which  had  formerly  made  the  eldest- 
born  son  of  the  direct  line  the  sole  proprietor,  as  trustee  for 
his  kinsmen,  of  the  family  lands  and  goods.  In  the  end,  this 
eldest  son  got  not  even  the  largest  share  of  the  property,  but 
divided  it  equally  Avith  his  brothers. 

Here,  then,  was  an  almost  complete  dismemberment  and 
disintegration  of  the  gens  as  a  political  unit  in  the  larger  gov- 
ernment of  the  city.  That  larger  government  had  superseded 
it  in  all  the  great  functions  of  social  control.  Its  private 
interests  and  prerogatives  were  no  longer  sufficient  to  hold  it 
together.  Its  members  had  become  citizens,  and  their  citizen- 
ship had  eclipsed  their  membership  of  the  family.  The  only 
politics  worth  competing  in  was  the  politics  of  the  city.  The 
cantons  no  longer  constituted  but  depended  upon  the  city. 

Athens. 

67.  The  City  of  Solon :  Kingship  gone.  —  The  first  dis- 
tinct view  we  get  of  Athenian  affairs  reveals  the  changes 
already  described  in  large  part  accomplished.  We  may  be 
said  to  get  that  first  distinct  view  in  the  time  of  Solon,  to 
whom  Athens  attributed  her  first  great  reform  code.  The 
Solonian  constitution  is  by  no  means  so  well  known  as  histo- 
rians wish  that  it  were ;  but  several  of  its  main  features  may 
be  said  to  be  beyond  dispute,  and  these  features  speak  very 
plainly  of  a  society  quite  unlike  that  of  the  prehistoric  Greek 
^  city  '  which  we  have  been  considering.  Homer  would  hardly 
have  recognized  the  city  for  which  Solon  legislated. 

Solon  was  put  in  charge  of  the  city's  affairs  by  being  chosen 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  41 

*Archon.'  AVhat  was  an  'Archon'?  The  ancient  'city'  had 
known  no  such  officer.  Did  he  act  for  the  king,  or  was  he  of 
the  Council  ?  Neither  the  one  thing  nor  the  other.  The 
ancient  kingship  had  disappeared,  the  archonship  was  one  of 
its  fragments.  The  abolition  of  the  kingship  had  doubtless 
come  about  through  an  aristocratic  revolution,  such  as  Aris- 
totle afterwards  noted  as  altogether  a  normal  movement  in 
Greek  politics.  The  '  kings '  of  the  Council  had  grown  by 
degrees  quite  intolerant  of  the  authority  of  the  king,  their 
patriarchal  president.  He  stood  for  the  growing  state ;  they, 
only  for  the  disintegrating  gentes.  His  hereditary  headship 
was  threatening  to  overshadow  permanently  their  individual 
part  in  affairs.  They  therefore  determined  to  control  his 
office,  to  make  it  dependent  upon  themselves.  Codrus,  the 
last  king  of  Athens,  is  said  to  have  sacrificed  himself  in  a  war 
with  Peloponnesian  foes,  because  of  a  prophecy  that  the 
enemies  of  Athens  would  be  victorious  unless  the  life  of  her 
king  were  yielded  up  in  the  contest,  and  it  is  added  by  the 
tradition  that  the  Athenians  thereupon  abolished  hereditary 
kingship  by  way  of  emphasizing  their  belief  that  no  one  was 
worthy  to  succeed  Codrus.  Possibly  we  are  not  at  liberty  to 
discredit  all  of  the  pretty  story ;  it  is  such  a  story  as  we  would 
not  discredit  if  we  could.  But  we  may  feel  assured  that  there 
were  other  potent  reasons  in  the  minds  of  the  ruling  men  of 
the  city  why  Codrus  should  be  the  last  of  her  kings,  and  that 
they  were  quite  clear  in  their  determination  that,  if  not 
Codrus,  then  some  early  successor  of  his  should  be  the  last  of 
the  hereditary  monarchs  of  Athens. 

68.  The  Archonship. — They  did  not,  however,  transform 
the  office  at  once  into  an  elective  magistracy.  They  could  not. 
Both  unreasoning  religious  belief  and  calculating  policy  would 
have  forbidden  any  such  violent  breach  in  the  ancient  order 
of  the  family-state.  To  all  outward  appearance  only  the  name 
of  the  office  was  changed.  Codrus,  who  had  been  Basileus 
(king),  was  succeeded  by  his  son  under  the  title  Archon 


42         THE  GOVERNISIENTS  OF  GREECE  AST)  ROME. 

(ruler).  That  was  all.  And  the  office  of  archon  was  held 
by  descendants  of  Codrus  in  strict  hereditary  ^succession  for 
about  three  hundred  and  sixteen  years.  It  is  evident,  however, 
that  this  change  of  name  in  the  chief  office  of  the  starte  cov- 
ered, perhaps  Avithout  altogether  concealing,  many  important 
changes  in  the  conditions  of  its  tenure.  If  Codrus  had  inher- 
ited too  strong  prerogatives,  the  archons,  his  successors,  exer- 
cised those  prerogatives  in  more  or  less  strict  subordination  to 
the  noble  families  represented  in  the  Council.  The  monarchy 
had  been  made  a  limited  monarchy.  The  archon  was  respon- 
sible to  a  watchful  House  of  Lords. 

69.  Nine  Archons.  —  At  length  the  hereditary  archonship 
was  in  its  turn  done  away  with.  The  archon's  tenure  of  office 
was  limited  to  ten  years,  the  archon  being  chosen,  doubtless,  by 
the  Council,  though  still  always  chosen  —  so  tenacious  was  the 
idea  of  the  hereditary  character,  the  fathership,  the  kin-headship 
of  the  ruler  of  the  state  —  from  the  family  of  Codrus.  But 
the  hereditary  principle  was  at  length  in  decay ;  and  the  first 
assured  date  in  Greek  history  shows  us  its  end.  In  the  year 
683  B.C.  the  archonship  was  made  annual,  its  functions  were 
divided  up  amongst  nine  offices,  and  to  these  offices  all 
Eupatrids  (all,  that  is,  who  were  of  the  old  kinship  of  the 
family-state)  were  made  eligible.  The  honorary  chief  of  these 
nine  archons  was  called  Archon  Eponymus,  because  from  him 
the  year  took  its  name  in  all  official  records ;  the  second  of 
the  nine  was  called  Archon  Basileus,  because  he  was  the  city's 
high-priest,  and  thus  successor  to  the  most  typical  of  the  old 
kingly  functions ;  the  third  was  Archon  Polemarchus,  having 
received  the  military  command  once  belonging  to  royalty  ;  the 
other  six  were  ThesmotJietce,  judges.  Kingship  had  been  'put 
into  commission.'  It  was  parcelled  out  among  the  members 
of  what  we  should  call  a  'board'  of  archons.  The  whole 
executive  direction  of  the  state  was  doubtless  in  the  hands  of 
this  board,  but  their  most  prominent  functions  were  judicial. 
They  were  all  judges.    Upon  the  chief  archon  devolved  the 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  43 

weighty  duty  of  determining  cases  of  family  law  and  inheri- 
tance ;  the  king-archon  adjudicated  the  then  numberless  cases 
which  religious  law  controlled;  the  archon  polemarch  heard 
all  cases  between  foreigners ;  the  six  Thesmothetse  decided 
such  cases  as  belonged  to  the  jurisdiction  of  none  of  the  three 
principal  archons — all  cases  not  otherwise  assigned.  There 
were,  moreover,  certain  judicial  functions  which  the  nine 
archons  exercised  jointly,  such  as  the  punishment  of  banished 
persons  who  had  broken  their  banishment,  the  oversight  of  the 
balloting  for  certain  minor  judgeships,  the  presidency  of  cer- 
tain meetings  of  the  people,  etc. 

70.  Solon  Archon  Eponymus  :  the  Crisis.  —  Such  was  the 
changed  magistracy  of  Solon's  time.  Solon  was  chosen  Archon 
Eponymus,  but  with  powers  such  as  no  archon  ever  regularly 
possessed.  He  was  chosen  at  a  crisis,  —  a  crisis  which  by  its 
very  existence  reveals  a  society  radically  unlike  the  society  of 
kinship  described  by  Homer.  There  are  three  contending 
parties  in  the  state, — the  men  of  the  mountain,  the  men  of  the 
shore,  and  the  men  of  the  plain.  Neither  the  men  of  the 
mountain  nor  the  men  of  the  shore  would  have  been  so  much 
as  counted  in  the  Homeric  state.  They  were  not  of  the  im- 
memorial kinship  at  all.  They  were  the  tillers  of  the  soil, 
holding  their  lands  of  the  noble  families  who  lived  in  and 
about  Athens,  and  who  constituted  the  third  party,  of  the 
plain.  They  were  outsiders  to  the  state.  The  noble  families 
were  the  state ;  these  men  of  the  mountain  and  the  shore  were 
their  subjects,  for  the  most  part  their  slaves,  bearing  every 
burden,  and  sharing  not  a  single  privilege.  Every  movement 
which  they  had  made  towards  even  a  partial  independence  had 
compelled  them  to  borrow  capital  of  their  masters  and  so  had 
clinched  their  slavery.  The  men  of  the  shore,  the  men,  that 
is,  tilling  the  generous  soil  of  the  lands  which  stretched  across 
the  southernmost  portion  of  the  Attic  peninsula  to  famous 
Sunium,  were  much  better  off  than  the  men  of  the  mountain, 
who  had  both  the  exclusiveness  of  the  law  and  the  niggardli- 


44         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

ness  of  nature  to  contend  with,  in  the  mountainous  districts 
to  the  north ;  but  both  hated  the  privileges  of  the  Eupatrids, 
and  were  ready  to  combine  in  order  to  wreck  them.  The  one 
could  not,  the  other  would  not,  any  longer  abide  content  with 
a  lot  which  forbade  them  all  independence  and  all  hope  of  a 
voice  in  the  determination  of  their  own  destinies.  The  men 
of  the  coast  would  have  accepted  moderate  concessions :  the 
poor  peasants  in  the  mountains  clamored  for  radical  meas- 
ures ;  but  both  would  have  something  done.  The  Eupatrids, 
with  their  submissive  retainers  on  the  plains  about  the  city 
and  the  port,  were  in  a  numerical  minority,  though  doubtless 
strongest  in  resource,  and  deemed  concession  unavoidable. 
Solon  was  a  man  of  advanced  age  and  of  established  reputa- 
tion, alike  for  courage,  for  honesty,  and  for  wisdom.  All 
parties  turned  to  him  with  hope  and  trust.  He  was  chosen 
archon,  invested  with  extraordinary  legislative  powers,  and 
bidden  make  a  constitution  just  to  all  alike.  This  was  in  the 
year  594  b.c. 

71.  The  Draconian  Code.  —  Twenty-seven  years  before  a 
somewhat  similar  task  had  been  assigned  to  Draco ;  but  he  had 
failed  through  too  great  conservatism.  He  had  framed  a  code 
which  had  rather  made  the  old  laws  public  and  certain  than 
rendered  them  equitable.  If  anything,  the  definiteness  which 
he  gave  the  law  had  added  harshness  to  it  by  making  it  stiffer 
and  more  inexorable  than  before.  It  was  Solon's  part  to  re- 
form the  institutions  of  the  state.  The  time  for  mere  revision 
had  gone  by,  and  the  time  for  reconstruction  come.  Draco's 
legislation  had  been  followed  by  the  explosion  of  an  attempted 
revolution ;  Solon's  must  be  followed  by  satisfaction  and  peace. 

72.  Solon's  Economic  Reforms.  —  And  Solon  certainly 
proceeded  with  courage  and  thoroughness ;  the  results  of  his 
work  showed  that  he  proceeded  also  with  wisdom.  He  insti- 
tuted both  economic  and  constitutional  reforms,  which,  though 
conservative  enough  to  force  no  too  rude  or  sudden  break  with 
the  past,  were  decided  and  timely  enough  to  assure  the  future 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  45 


of  the  state.  We  are  concerned  here  with  his  economic  as 
well  as  with  his  political  measures,  because  the  former  were 
the  necessary  foundation  for  the  latter.  It  was  necessary  to 
free  the  poor  before  enfranchising  them.  Accordingly  Solon 
struck  off,  first  of  all,  the  cliains  of  debt  which  bound  them, 
not  in  property  only,  but  in  person  as  well,  to  the  moneyed 
Eupatrids,  their  landlords  and  creditors.  Their  debts  were 
remitted  and  their  persons  freed.  A  reforging  of  their  chains 
was  prevented  by  a  law  which  forbade  the  pledging  of  the 
debtor's  person  as  security  for  debt.  Besides  freeing  the 
workers  of  the  soil,  Solon  himself  tells  us,  in  a  fragment  of 
his  curious  narrative  and  didactic  verses,  that  he  freed  also  the 
land  itself  by  removing  certain  stone  pillars  from  it.  There  is 
a  controversy  amongst  historians  as  to  the  meaning  of  this 
statement,  as  there  is  as  to  so  many  of  the  other  events  of 
that  remote  time.  We  must  either  believe  that  the  pillars 
removed  bore  record  of  mortgages,  or  —  failing  to  credit  so 
early  a  development  of  a  seemingly  rather  modern  system 
of  mortgaging — we  must  conclude  that  these  pillars  were 
boundary  stones  sacred  to  those  most  revered  gods,  the  gods 
of  boundaries,  and  that  they  marked  the  inalienable  ownership 
of  the  land  b}'  the  Eupatrids,  whose  gods  these  were.  To 
remove  mortgage  records  would  be  only  temporarily  to  free 
the  land  from  its  bondage  to  the  moneyed  classes,  for  new 
mortgages  might  be  made ;  but  to  remove  the  boundary  pillars 
which  marked,  with  sacred  signs  hallowed  by  superstition,  the 
immemorial  proprietorship  of  the  Eupatrid  families,  would  be 
to  make  a  division  of  estates  possible,  and  eventual  peasant 
proprietorship,  when  prescription  was  no  longer  disproved  by 
those  witnessing  pillars,  at  least  a  thing  to  be  hoped  for.  The 
one  measure  would  free  the  land  only  for  a  term ;  the  other 
would  free  it,  possibly,  ^for  good  and  all.'  But  either  would 
free  it ;  and,  whichever  may  be  within  Solon's  meaning,  it  is 
clear  that  his  whole  scheme  of  economical  reform  was  intended 
to  better  the  condition  of  the  classes  hitherto  not  reckoned  of 


46         THE  GOVERmiENTS  OF  GREECE  AND  ROME. 

the  state  at  all.  Industry  was  at  least  put  in  the  way  of  earn- 
ing its  just  reward.  Even  men  not  of  the  noble  blood  were  to 
be  given  leave  to  thrive  and,  mayhap,  grow  rich. 

73.  Solon^s  Political  Reforms:  the  Four  Property  Classes. 
—  The  next  step  was  to  make  wealth  the  patent  of  political 
privilege.  And  here  we  come  to  Solon's  political  reforms.  He 
divided  the  citizens  of  the  state  into  four  classes  according  to 
wealth.  Their  wealth  was  classified  according  to  their  incomes, 
reckoned  in  measures  of  grain,  or  of  oil  or  wine.  The  first  of 
these  property  classes  was  to  consist  of  those  who  received 
yearly  at  least  five  hundred  meclimni  of  corn  or  measures  of 
oil  or  wine  from  their  estates.  The  members  of  this  class, 
therefore,  were  to  be  called  Pentacosiomedimni  (five-hundred- 
medimni-men).  The  second  class  were  to  be  three-hundred- 
medimni-men ;  the  third,  one  hundred  and  fifty.  The  fourth 
class  embraced  all  not  included  in  the  other  three,  'the  ' 
masses,'  as  we  should  say.  The  members  of  the  second  class 
were  called  also  Hippeis,  or  knights,  because  upon  them 
devolved  cavalry  service  in  the  army;  the  members  of  the 
third,  Zeugitce,  because  they  had  property  enough  to  require 
the  employment  of  a  yoke  of  draught  animals ;  the  members 

of  the  fourth,  Thetes,  because  they  were,  for  the  most  part, 
laborers  for  hire. 

74.  It  will  be  noted  that  only  landed  property  is  reckoned 
in  this  classification.  Probably  it  constituted  the  mass  of  prop- 
erty in  Attica  at  that  time,  though  there  were  traders  in  the 
community,  and  Athens  had  never  had  the  contempt  for  com- 
merce and  the  trades  which  so  long  prevailed  at  Sparta  and 
Rome.  Solon  himself  had  bettered  his  fortunes  by  merchan- 
dising. He  had  been  a  merchant  before  he  became  a  states- 
man. It  was  his  knowledge  of  the  world  acquired  in  his  travels 
as  a  merchant,  indeed,  which  constituted  a  large  part  of  his 
qualification  for  the  task  now  assigned  him.  But  personal 
property  was  not  an  important  enough  element  in  the  wealth 
of  Athenians  at  that  day,  it  would  seem,  to  be  accorded  politi- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  47 

cal  weight.  The  Eupatrids  were  of  course  the  chief  landowners. 
Theirs  was  still,  consequently,  the  chief  part  in  the  state. 

75.  Eligibility  and  Election  to  Office. — For  eligibility  to 
the  highest  public  functions  was  confined  to  members  of  the 
highest  property  class,  though  the  franchise  was  not.  Solon 
instituted  a  popular  Assembly,  in  which  every  citizen,  of  Avhat- 
ever  class,  had  a  vote,  and  to  this  Assembly  was  entrusted  the 
election  of  all  magistrates.  To  the  lesser  magistracies  any 
member  of  the  first  three  classes  might  be  elected  ;  to  the  chief 
magistracies,  such  as  the  archonships,  only  members  of  the 
first  class  ivho  were  also  of  Eupatrid  blood  could  be  elevated. 
Solon  was  not  breaking  with  the  past.  Blood  still  counted  for 
much.  The  old  families  were  still  to  conduct  the  affairs  of 
the  state,  though  now  only  after  popular  election. 

76.  The  Assembly  and  the  Senate.  —  The  popular  Assembly 
was  not  only  an  electoral,  it  was  also  a  legislating  body.  Cer- 
tain subjects  were  always  to  be  submitted  to  its  vote.  But  it 
was  not  the  only  or  the  highest  deliberative  assembly.  Solon 
instituted  Sipro-bouleutic  (pre-determining)  Senate  of  Four  Hun^ 
dred,  by  which  all  business  to  be  brought  before  the  popular 
Assembly  was  to  be  first  digested  and  prepared,  and  without 
whose  preliminary  decree  no  business  at  all,  aside  perhaps  from 
the  elections,  was  to  be  submitted  to  that  subordinate  body. 
The  four  hundred  members  of  this  Senate  were  to  be  chosen 
(one  hundred  out  of  each  of  the  four  tribes  into  which  the 
people  were  from  of  old  divided)  from  the  first  three  of  the 
property  classes.  This  Senate  probably  succeeded,  in  general, 
to  the  political  place  formerly  occupied  by  the  ancient  Council 
of  Elders.  It  could,  in  its  discretion,  dispose  of  most  matters 
finally,  without  consulting  the  popular  Assembly.  The  Archons 
doubtless  had  presiding  seats  in  it,  as  they  must  previously 
have  had,  as  successors  to  the  kings,  in  the  ancient  Council. 
The  election  of  senators,  like  that  of  archons  and  all  other 
magistrates,  took  place  every  year,  the  Senate's  authority  being 
as  brief  as  it  was  great.    The  popular  Assembly,  on  the  other 


48         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

hand,  Tvas  from  the  nature  of  the  case  a  perpetual  body.  Men 
of  all  four  of  the  classes,  every  one  who  was  reckoned  a  citizen, 
being  of  its  membership,  not  even  variations  in  the  body  of 
wealth  affected  its  composition.  It  always  included  all  citi- 
zens. 

77.  The  Senate  of  the  Areopagus.  — At  the  top  of  the  state 
stood  a  still  higher  tribunal,  the  Senate  of  the  Areopagus.  The 
origination  of  this  council  is  sometimes  attributed  to  Solon. 
He  did  not  originate  it;  he  only  gave  it  new  form  and  an 
altered  jurisdiction.  He  constituted  it  "  a  supreme  supervisory 
authority,  whose  duty  it  was  at  once  to  watch  over  the  collec- 
tive administration,  the  behavior  of  the  magistrates  in  of&ce, 
the  proceedings  of  the  popular  Assembly,  and,  in  cases  where 
it  was  required,  to  interpose ;  while  at  the  same  time  it  was 
bound  to  deal  with  the  public  discipline  and  the  regulation  of 
conduct  in  the  most  general  sense  of  those  terms,  and  in  con- 
sequence possessed  the  right  of  bringing  private  individuals  to 
give  an  account  of  objectional  behavior  on  their  part."  ^  Not  all 
of  these  functions  were  new.  Possibly  no  one  of  them  was.  It 
may  be  that  the  only  Solonian  feature  in  the  powers  of  the 
Areopagitic  Senate  was  their  limitation.  For  there  is  good 
reason  to  believe  that  this  council  which  sat  on  the  Areopagus 
was  the  ancient  Council  of  Elders.  Solon  stripped  it  of  its 
legislative  functions,  its  immemorial  initiative  in  state  affairs, 
and  constituted  the  Senate  of  Four  Hundred,  with  its  briefer 
tenure  and  its  more  direct  responsibility  to  the  people,  to  re- 
ceive them.  The  ancient  Council  retained  only  functions  of 
oversight  and  of  discipline.  The  Four  Hundred  were  thereafter 
the  Senate ;  while  the  body  whose  greatest  prerogatives  they 
had  taken  became  only  the  Senate  ^of  the  Areopagus.'  The 
traditional  rules  with  reference  to  the  composition  of  the  latter 
were  also  set  aside :  its  exclusiveness  was  invaded  by  the  pro- 
vision that  its  members  should  be  supplied  "  from  those  out- 


1  Sch(3raann,  p.  332. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  49 

going  archons  of  each  year  who  had  held  their  office  without 
blame."  ^  Membership  continued,  however,  to  be  for  life,  as 
of  old. 

78.  The  Judiciary.  —  Little  formal  change  was  made  in  the 
duties  of  the  archons.  They  retained  their  judicial  functions 
almost  intact.  But  their  judgments  were  made  to  be  subject 
to  revision  by  a  higher  and  more  popular  tribunal,  the  Helioea. 
The  Helioea  was  a  body  of  jurors  chosen  annually  —  whether 
by  lot  or  election  is  not  known  —  from  the  whole  body  of  the 
people.  There  were  also  local  justices  who  administered  the 
law  in  minor  cases  in  outlying  districts  of  Attica.  The  archo- 
nal  courts  thus  became  for  the  most  part  only  courts  of  ^  first 
instance,'  no  longer  rendering  final  judgments,  but  delivering 
their  decisions  subject  to  appeal  to  the  Helicea.  In  hearing 
criminal  cases,  moreover,  the  Helicea  was  often  the  first  and 
only  tribunal.  Its  civil  jurisdiction  was  altogether  on  appeal. 
Here  was  certainly  a  very  much  popularized  judiciary. 

79.  The  New  Principles  introduced.  —  Such  was  the  consti- 
tution of  Solon.  Great  as  were  the  changes  of  form  which  it 
introduced,  important  as  were  the  changes  of  principle  which 
it  effected,  it  was  throughout  wrought  in  a  conservative  spirit. 
It  promised  profound  alteration,  but  it  did  not  threaten  rapid 
alteration ;  and  it  forced  no  revolution  at  all.  It  left  the  noble 
families  in  power ;  but  it  placed  their  authority  upon  a  foun- 
dation of  popular  consent,  and  bounded  it  on  its  judicial  side 
by  an  appeal  to  popular  jury  courts.  It  introduced  wealth  as 
a  standard  of  political  privilege,  and  so  gave  potency  to  a  prin- 
ciple which  would  inevitably  antagonize  and  in  the  end  oust 
the  idea  of  hereditary  right :  but  for  the  present  it  added  to 
requirements  of  wealth  requirements  of  blood  also.  The  Eu- 
patrids  were  still  to  hold  the  great  offices,  but  only  those 
among  them  were  to  be  eligible  who  possessed  the  further 
qualification  of  abundant  incomes.    The  next  step,  which  he 


1  Schomann,  p.  3.32. 


50         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

did  not  take,  would  be  to  make  wealth  the  only  qualification 
for  power.  Before  another  century  passed  over  the  head  of 
the  new  constitution  we  find  that  change  accomplished. 

80.  Pisistratus  and  the  Solonian  Constitution.  —  In  one 
sense  the  constitution  of  Solon  did  not  succeed ;  in  a  wider 
sense,  however,  it  had  the  highest  possible  success.  It  con- 
tained the  elements  which  made  up  the  constitution  of  his  city 
in  the  later  times  of  her  greatest  glory.  It  pointed  out  the 
way  to  all  subsequent  successful  reforms.  But  for  the  moment 
it  lived  only  by  the  sufferance  of  its  enemies.  Solon  had,  in 
the  eyes  of  the  Eupatrids,  done  too  much.  They  saw  an  end 
to  their  exclusive  privileges  in  accepting  the  principles  of  his 
legislation.  In  the  eyes  of  the  men  of  the  mountain  and  the 
shore  he  had  done  too  little.  Fomented  by  interested  parties, 
no  doubt,  the  old  strife  broke  out  afresh,  and  Solon's  own 
nephew,  Pisistratus,  uniting  the-  popular  parties  in  his  aid, 
seized  and  finally  held  dictatorial  power.  Here  was  a  sad  out- 
rage to  the  principles  which  Solon  had  striven  to  establish ! 
But,  in  reality,  it  was  probably  the  success  of  Pisistratus  that 
kept  the  Solonian  constitution  alive  for  the  peaceful  uses  of 
later  times.  Amidst  the  clash  of  factions  it  would  probably 
have  been  trodden  into  the  ground,  to  be  forgotten,  had  not 
Pisistratus,  willing  to  preserve  so  much  of  its  machinery  as 
suited  his  own  purposes,  upheld  it  by  his  own  despotic  power. 
Its  forms  were  more  popular  than  those  of  the  constitution  it 
had  been  meant  to  supersede ;  he  was,  professedly,  the  cham- 
pion of  the  popular  cause ;  it  was  politic  that  he  should  retain 
the  most  liberal  institutions  at  hand.  He  therefore  affected 
only  to  preside,  with  certain  supreme  and  extraordinary  powers, 
ov^er  the  constitution  set  up  by  his  uncle.  Solon  lived  to  wit- 
ness his  nephew's  unlawful  triumph  and  to  utter  an  intrepid 
protest  against  such  mockery  of  his  aims.  But  Pisistratus 
kept  his  usurped  powers  to  the  end  of  his  long  life  and  handed 
them  on  to  his  sons,  preserving,  even  if  in  mockery,  at  least 
the  hull  of  the  institutions  created  by  Solon ;  and  when  his 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  51 

sons,  forgetting  his  prudence  and  failing  to  imitate  his  wisdom 
and  moderation,  were  driven  from  the  throne  he  had  established 
for  them,  enough  of  the  Solonian  constitution  remained  to  serve 
as  a  basis  and  model  for  lasting  reforms. 

81.  Clisthenes. —  The  new  reformer,  who  was  to  complete 
the  work  of  Solon,  was  Clisthenes.  He  was  a  pronounced 
champion  of  the  rights  of  the  people,  and  began  his  career  in 
Athens  by  defeating  those  who,  under  the  leadership  of  Isago- 
ras,  attempted,  after  the  expulsion  of  the  Pisistratidse,  to  re- 
store the  old-time  domination  of  the  Eupatrid  families.  The 
next  step  was  to  secure  the  permanency  of  his  success  by  es- 
tablishing a  constitution  which  should  be  genuinely  a  consti- 
tution for  all  the  people. 

82.  The  New  Demes  and  the  New  Tribes.  —  It  was  plain 
that  the  first  thing  to  do  was  to  contrast  the  policy  of  Solon 
by  refusing  all  special  privileges  to  Eupatrids  as  Eupatrids. 
They  must  take  their  chances  of  political  preferment  in  com- 
petition with  all  other  citizens.  Solon  had  reserved  the  chief 
offices  for  them  and  had  constituted  the  Senate  of  Four  Hun- 
dred of  representatives  of  those  four  tribes  of  immemorial 
origin  which,  being  aggregations  of  the  sacred  gentes  and  phra- 
tries  which  were  the  strongholds  of  Eupatrid  kinship,  were 
themselves,  in  a  sense,  exclusive  aristocratic  associations. 
Clisthenes  admitted  to  office  all  who  belonged  to  the  first  three 
property  classes  and  altogether  ignored  the  old  tribes  in  mak- 
ing up  the  Senate.  The  four  tribes  continued  to  exist,  as  re- 
ligious, ecclesiastical  organizations ;  but  they  ceased  to  count 
for  aught  in  the  political  structure  of  the  state.  They  lost  all 
political  significance.  Clisthenes  first  increased  the  number  of 
citizens  by  admitting  many,  some  of  whom  were  manumitted 
slaves,  hitherto  excluded.  He  then  divided  the  territory  of 
Attica  into  one  hundred  administrative  districts  which  he 
called  Demes.  These  demes  he  combined,  by  tens,  into  ten 
tribes ;  and  these  tribes  it  was  which,  having  appropriated  the 
name  of  the  greatest  units  of  Eupatrid  organization,  super- 


52        THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

?eded  them  also  in  the  Senate.  The  number  of  the  senators 
was  raised  from  four  to  five  hundred,  and  the  Senate  was  con- 
stituted of  fifty  representatives  from  each  of  these  new  tribes. 
Any  reputable  citizen  was  made  eligible  to  a  seat  in  the  Senate. 

83.  The  Arrangement  of  the  Demes.  —  All  this  would  look 
like  startling  innovation ;  but  Clisthenes'  course  was  not  quite 
so  radical  as  would  at  first  sight  appear.  His  tribes  were  new ; 
but  the  demes  were  most  of  them  old,  having  only  received 
from  him  new  functions  and  a  new  significance.  The  territory 
of  Attica  had  already  for  a  long  time  been  divided  into  small 
districts  centring  in  villages  and  hamlets  and  bearing  this 
name  of  Demes.  Clisthenes  only  limited  their  number  to  one 
hundred,  probably  not  very  materially  altering  existing  boun- 
daries or  very  often  merging  small  demes  into  one  of  proper 
size,  and  made  them  the  constituent  units  of  his  new  tribes. 
One  of  the  most  curious  and  most  characteristic  features  of  his 
scheme  was,  that  the  ten  demes  which  went  to  make  up  a  tribe 
were  never  ten  contiguous  demes.  Neighboring  demes  were 
separated  in  political  function  by  being  assigned  to  different 
tribes.  The  demes  lying  within  Athens  itself,  for  instance, 
belonged  to  no  less  than  five  of  the  tribes.  Each  tribe  had  its 
demes  scattered  here  and  there  in  separated  portions  of  Attica. 
The  object  of  this  singular  arrangement  was  to  break  the  backs 
of  the  old  factions  of  the  plain,  the  mountain,  and  the  shore 
by  joining  in  interest  and  in  political  action  the  demes  of  the 
various  sections.  Sectional  feeling  was  to  be  thus  weakened 
by  bringing  the  sections  into  constant  and  intimate  co-opera- 
tion, and  sectional  action  impeded  by  depriving  the  sections  of 
political  cohesiveness. 

84.  Religion  and  the  Tribal  Organization.— The  plan  was 
quite  artificial,  though  the  materials  out  of  which  the  new  tribes 
were  made  were  old  and  familiar  materials ;  but  it  could  not 
well  have  been  otherwise  than  artificial.  Beligion  and  its  im- 
perative prejudices  forbade  any  dilution  of  the  genuine  Attic 
gentes,  which  were  the  core  of  the  old  tribes,  by  the  introduc- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  53 

tion  of  new  citizens  of  no  birth  at  all.  The  old  organizations 
could  not  be  popularized  without  committing  something  very 
like  sacrilege ;  and  since  they  could  not  be  reformed,  the  only 
thing  left  to  do  was  to  replace  them.  The  only  way  to  do  that 
was  to  create  entirely  new  political  materials.  Hence  the  ncAv 
tribes  were  formed,  and  given  their  own  ecclesiastical  functions 
in  imitation  of  those  of  the  old  tribes.  There  could  be  no  or- 
ganization without  its  special  priesthood  and  religious  obser- 
vances :  the  old  organizations  could  not  open  their  sacred  mys- 
teries to  any  not  of  the  real  or  adopted  kin.  The  best  thing  to 
do,  therefore,  was  to  put  aside  the  old  family  unions  altogether 
and  make  up  a  new  congeries  of  associations  with  their  own 
worship  and  their  own  internal  governments,  which,  if  artifi- 
cial at  first,  might  be  expected  in  time  to  acquire  a  vitality  and 
a  dignity  as  substantial  and  as  lasting  as  those  of  the  Eupatrid 
dispensation.  This,  accordingly,  was  done.  The  ncAv  tribes 
adopted  eponymous  heroes,  the  statues  of  these  patrons  were 
set  up  in  the  Agora,  where  their  tribes  might  gather  about  them 
when  assembled  for  consultation;  and  j)olitics  was  asked  to 
forget  the  Eupatrids. 

85.  Expansion  of  the  Popular  Jury  Courts. —  The  next 
step  in  the  popularization  of  the  constitution  was  a  still 
further  extension  of  the  jury  court  system.  The  number  of 
Heliasts  was  increased,  and  it  was  provided  that  they,  like  the 
senators,  should  be  chosen  proportionally  from  the  ten  new 
tribes.  Since  the  new  tribes  contained  many  who  had  never 
before  been  citizens  and  some  who  had  once  been  slaves,  this 
expansion  of  the  popular  jury-system  must  of  course  have 
been  of  great  consequence  as  a  step  towards  democracy. 

86.  The  Ten  Strategoi. —  Clisthenes  transferred  the  com- 
mand of  the  military  forces  of  the  city  from  the  Archon  Pole- 
marchus,  whose  functions  Solon  had  left  untouched,  to  ten 
Strategoi  (generals),  to  be  annually  elected,  one  out  of  each  of 
the  new  tribes,  by  the  Assembly.  Or,  rather,  these  generals 
were  associated  with  the  War  Archon,  overshadowing  him,  if 


64         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

not  in  dignity,  certainly  in  power,  and  destined  afterwards  to 
oust  him,  and  indeed  others  of  the  nine  archons,  from  many 
Either  duties  of  administration. 

The  relations  of  the  strategoi  to  one  another  are  illustrated  in  an  in- 
teresting way  in  connection  with  the  battle  of  Maratlion.  They  took 
turns,  day  by  day,  in  the  command  when  in  the  field.  It  was  on  the  day 
of  Miltiades'  command  that  Marathon  was  fought,  though  the  others 
are  said  to  have  yielded  their  commands  to  him  on  the  days  which  pre- 
ceded the  battle. 

87.  Ostracism.  —  Clisthenes  was  determined  that  no  Pisis- 
tratus  should  use  the  new  constitution  for  his  own  ends.  He 
therefore  completed  his  work  by  adding  the  law  of  Ostracism. 
This  is  a  law  much  scorned  by  commentators  of  our  own  mod- 
ern times,  when  democracies  are  too  strong  and  self-possessed 
to  fear  the  wiles  of  demagogues ;  but  there  can  be  no  question 
amongst  those  who  understand  the  times  and  the  state  for 
which  Clisthenes  was  legislating,  about  the  wisdom  of  estab- 
lishing such  a  law  in  Athens.  Its  provisions  were  not  harsh. 
It  enacted  that  whenever  it  appeared  that  some  one  statesman 
was  gaining  such  an  ascendency  over  the  people  that  he  might, 
if  he  chose,  use  it  unlawfully  for  his  own  advantage,  as 
Pisistratus  had  done,  or  employ  it  to  raise  his  rivalry  with 
some  opponent  to  a  dangerous  pitch  of  bitterness,  the  Senate 
might  call  upon  the  people  to  declare  their  opinion  as  to 
whether  any  one  should  be  temporarily  banished  from  the 
state.  When  the  Senate  called  for  the  vote,  no  names  were 
sent  down  to  the  people.  There  were  no  forced  candidates  for 
ostracism.  The  question  was  simply.  Is  there  any  one  in 
Athens  of  whom  it  would  be  to  the  advantage  of  her  peace  and 
tranquillity  to  be  rid  for  a  season  ?  Each  voter  made  up  his 
own  ballot.  If  six  thousand  ballots  contained  the  name  of 
the  same  man,  that  man  must  leave  Attica  and  her  possessions 
for  ten  years.  Six  thousand  votes  were  probably  more  than  a 
third  of  the  total  vote  of  Athens.  Although  a  minority,  there- 
fore, could  compel  the  retirement  of  any  public  man,  it  must 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  55 

have  required  a  very  strong  and  well-grounded  movement  of 
public  opinion  to  bring  about  this  concerted  action  of  six  thou- 
sand voters  against  one  man.  A  very  evident  propriety  in  ban- 
ishing him  must  have  existed  before  so  many  people  would  see 
it  and  declare  it.  That  ostracism  was  not  a  weapon  easy  to 
use  is  shown  by  the  striking  infrequency  of  its  use,  and  by  the 
steady  decline  in  its  employment.  It  was  a  vital  element  of 
the  constitution  at  first,  but  as  that  constitution  gained  greater 
and  greater  assurance  of  permanence  and  stability,  it  more  and 
more  decisively  cast  aside  an  instrument  which,  after  all,  was 
an  instrument  for  the  weak  and  not  for  the  strong ;  and  ostra- 
cism fell  at  length  into  utter  disuse.  Not,  however,  before  it 
had  done  its  appointed  work.  It  had  unquestionably  given  the 
new  constitution  time  and  assured  peace  in  which  to  grow.  It 
had  afforded  the  people  an  opportunity  to  acquire  a  steady  po- 
litical habit  and  an  habitual  "  constitutional  morality  "  such  as 
they  might  never  have  attained  to  had  the  rivalries  of  party 
leaders  had  no  check  placed  upon  them,  and  had  political  in- 
temperateness  had  no  punishment  to  fear.  It  taught  them  to 
restrain  their  leaders,  and  so  taught  them  to  discipline  them- 
selves. By  guarding  themselves  against  being  hastened  into 
revolution  they  learned  what  tended  towards  revolution.  By 
defending  their  constitution  against  designing  men  they 
learned  what  that  constitution  was  in  its  spirit  as  well  as  in 
its  letter.  They  learned  which  were  the  right  paths  in  politics 
by  taking  care  not  to  be  seduced  into  wrong  ones.  One  never 
finds  out  all  the  meanings  of  his  creed,  be  that  creed  politi- 
cal or  religious,  until  he  has  to  defend  it  against  attack : 
and  when  one  has  learned  to  handle  foes  within  the  gates,  the 
defence  of  the  outer  walls  has  become  a  matter  of  assured 
success. 

88.  Success  of  the  Clisthenian  Constitution.  —  The  suc- 
cess of  the  reforms  of  Clisthenes  is  beyond  question.  Their 
quality  was  put  to  an  early  and  severe  test  —  the  test  of  the 
fiery  days  of  Persian  invasion  and  of  the  exaltation  of  the 


66         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

years  that  followed,  when  Athens  was  indisputably  the  lead, 
ing  state  in  all  Hellas  and  formal  head  of  a  great  alliance 
(sees.  129,  130)  :  and  the  test  only  confirmed  their  strength. 
Athens  received  political  life  from  the  hands  of  Clistlienes, 
and  her  constitution  retained  substantially  the  form  he  had 
given  it  until  the  days  of  real  independence  and  of  merited 
glory  had  altogether  and  finally  departed  from  the  shores  of 
Cephisus  and  Ilissus.  We  have,  therefore,  only  to  trace  the 
changes  of  the  intervening  years  to  complete  our  view  of  this 
greatest  government  of  Greece. 

89.  The  Persian  Wars  and  the  Extension  of  Political  Priv- 
ileges. —  The  Persian  wars  wrought  important  changes  in  the 
economical  condition  of  Athens.  The  country  had  more  than 
once  been  laid  waste  by  the  Persians,  and  such  ruin  had  re- 
sulted to  the  owners  of  land  that  probably  very  many  who  had 
once  had  rank  in  the  first  of  the  property  classes  had  sunk  to 
the  last.  Landed  estates,  the  only  estates  hitherto  reckoned  in 
the  census  of  wealth,  had  been,  temporarily  at  least,  rendered 
almost  barren  of  income.  Personal  xu'operty  gained  in  trade 
had,  on  the  contrary,  much  increased,  and  had  been  in  large 
part  saved  from  the  clutches  of  the  invaders.  Athens,  in 
short,  had  become  a  commercial  state,  and  because  a  commer- 
cial state  naturally  a  naval  state  also.  There  unquestionably 
grew  up  among  her  citizens  a  very  considerable  and  influential 
body  of  merchants  possessed  of  much  vrealth,  and  yet  by 
reason  of  their  lack  of  real  estate,  ranking  no  higher  than  the 
poorest  Thetes.  We  can  understand  the  considerations,  there- 
fore, which,  soon  after  the  battle  of  Plataeae,  led  Aristides  to 
propose,  and  the  city  to  consent,  that  eligibility  to  ofiice  should 
be  extended  to  all  classes  of  the  people,  irrespective  of  any  ine- 
qualities of  wealth. 

90.  The  Policy  of  Pericles.  —  When  Pericles  came  to  the 
front  of  affairs  in  Athens,  therefore,  the  constitution  wore  the 
features  of  a  complete  democracy.  The  influence  of  Pericles, 
although  permanent  beyond  the  example  of  the  politics  of 


THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


57 


most  democratic  states,  rested,  not  upon  usurpation,  but  upon 
his  commanding  influence  with  the  people ;  and  the  whole  of 
his  policy  was  directed,  by  intention  at  least,  towards  the  edu- 
cation of  the  people  in  the  tasks  of  government  and  the 
standards  of  conduct  which  belonged  to  Athens  as  the  leading 
state  of  Greece  not  only,  but  of  Hellas  as  well.  It  was  under 
his  inspiration  that  Athens  was  filled  with  the  splendid  monu- 
ments of  art  and  architecture  which  have  given  a  special 
distinction  to  the  '  Age  of  Pericles.'  It  was  at  his  suggestion 
that  the  people  were  voted  small  payments  for  their  attend- 
ance at  the  jury  courts  and  the  assemblies,  besides  a  largess  to 
enable  them  to  attend  the  exhibitions  in  the  theatre.  The 
theatre  played  a  large  part  in  Pericles'  plans  for  the  education 
of  the  populace  :  no  means  were  to  be  neglected  which  might 
serve  to  quicken  the  judicial  and  political  activities  of  the 
people,  or  strengthen  Pericles  in  their  favor. 

The  policy  of  thus  paying  the  people  to  perform  their  duties 
and  to  be  amused  was,  nevertheless,  in  the  end  a  fatal  one. 
So  long  as  a  Pericles  dominated,  all  went  well ;  but  so  soon  as 
the  city  lost  Pericles  and  forgot  the  fashion  of  statesmanship 
which  he  had  set,  much  began  to  go  ill.  The  majority  of  the 
citizens  soon  came  to  prefer  paid  service  in  civil  offices  to  the 
necessary  service  in  the  field  of  battle.  They  were  not  long 
in  becoming  mere  lethargic  pensioners  of  the  state. 

91.  Constitutional  Reforms  of  Ephialtes.  —  The  final  steps 
in  revising  the  republican  constitution  of  Athens  Avere  taken 
by  Ephialtes.  At  his  suggestion  all  offices  except  those  of  the 
strategoi,  who  had  absorbed  the  most  important  executive 
functions  of  the  state,  were  filled,  not  by  election  as  thereto- 
fore, but  by  lot ;  ^  and  the  powers  of  the  Areopagus  were 
further  curtailed.  By  a  law  proposed  by  Ephialtes  in  b.  c, 
460  the  Areopagus  was  deprived  of  its  oversight  of  the  consti- 

1  It  is  not  quite  certain  whether  choice  by  lot  was  introduced  by  Ephial- 
tes or  earlier  by  Aristides.  See  Gilbert,  Handhuch  der  Griechischen  Staat- 
salterthiimer,  pp.  146,  147,  and  authorities  there  cited. 


58         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

tutional  life  of  the  state  (sec.  77)  and  of  the  private  life  of  its 
citizens  and  its  jurisdiction  limited  to  the  single  matter  of 
blood-guiltiness.  In  the  stead  of  the  former  disciplinary 
powers  of  the  Areopagus,  a  similar  duty  of  supervision  was 
imposed  upon  a  board  of  seven  Nomophylaces,  or  guardians  of 
the  law. 

The  introduction  of  election  by  lot  was  probably  rendered 
comparatively  innocuous  by  the  fact  that  the  functions  of  the 
ordinary  magistracies  had  been  grea^tly  curtailed  in  importance 
by  the  institution  of  the  popular  jury  courts  and  the  concen. 
tration  of  administrative  duties  in  the  hands  of  the  generals. 
Any  man  not  lacking  in  sense  might  now  fill  a  magistracy 
without  serious  fault. 

92.  Decline  of  Athens.  —  Such  was  the  constitution  of 
Athens  when  the  calamities  came  which  marked  the  close  of 
the  Peloponnesian  war  and  the  beginning  of  the  final  decline 
of  Athenian  power  and  independence  (sees.  131-133).  This 
time  of  decline — ending  with  the  victory  of  Macedonia  at 
Chseronea  in  338  B.C.  —  witnessed  one  or  two  temporary 
returns  to  oligarchy,  and  many  proofs  of  a  sad  decline  in 
political  morality  on  the  part  of  the  people.  Their  pay  for 
service  and  their  largesses  for  pleasure  were,  of  course, 
increased,  constant  depredations  were  made  upon  the  rich,  and 
the  naval  and  military  reputation  of  the  city  was  given  over 
into  the  keeping  of  mercenaries.  But  the  Clisthenian  consti- 
tution was  retained  in  substance  to  the  end. 

93.  The  Metoeci.  —  Our  view  of  Athens  will  now  be  com- 
plete enough  for  our  present  purposes  when  we  shall  have 
noticed  the  non-citizen  classes,  —  the  slaves  and  the  metoeci. 
The  Athenian  democracy  illustrated  the  character  of  all 
ancient  democracies  in  confining  the  franchise  to  a  small 
minority  of  her  population.  Besides  her  citizen  population, 
which  may  be  placed  at  ninety  thousand,  she  had  a  slave 
population  four  times  as  great  (namely,  about  365,000),  and 
a  population  of  resident  aliens  (metoeci)  which  was,  in  pros- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  59 

perous  periods,  about  half  as  great  (45,000).  The  class  ol 
metoeci  was  composed  principally  of  foreigners,  among  whom 
were  Lydians,  Phrygians,  Syrians,  and  Phoenicians,  as  well  as 
Greeks  from  other  Hellenic  cities,  who  had  come  to  Athens  to 
take  advantage  of  the  exceptional  facilities  afforded  for  trade 
in  consequence  of  her  situation  and  policy,  though  many  man- 
umitted slaves  were  also  reckoned  of  their  number.  It  was 
from  the  ranks  of  the  metoeci  that  Clisthenes  had  recruited  the 
number  of  citizens,  and  in  later  times  great  numbers  of  them 
were  often  naturalized  for  democratic  purposes.  But  so  long 
as  they  remained  metoeci  their  disabilities  were  many.  With- 
out a  special  vote  of  permission  they  could  not  acquire  prop- 
erty in  land  in  Attica.  They  were  obliged,  under  pain  of 
a  criminal  prosecution,  followed  on  conviction  by  possible 
slavery,  to  choose  a  patron  (Prostates)  from  among  the  citi- 
zens as  an  intermediary  between  them  and  the  state.  It  was 
only  through  this  patron  that  they  could  approach  the  courts 
to  enforce  their  rights  or  in  any  way  deal  with  the  state. 
They  were  mulcted  in  taxes  as  if  they  were  citizens,  besides 
paying  a  special  protection  tax  and  a  special  fee  for  market 
privileges.  They  had,  moreover,  to  suffer  the  mental  weight 
of  that  contempt  which,  though  less  pronounced  at  Athens 
than  elsewhere,  all  Greeks  felt  for  foreigners.  But  that  their 
disabilities  were  not  too  heavy,  and  that  their  privileges  were 
of  great  moment,  is  abundantly  proved  by  their  numbers  alike 
in  times  of  peace  and  in  seasons  of  war. 

94.  The  Athenian  Slaves.  —  The  Athenian  slaves  were 
either  barbarians  taken  in  war  or  slaves  bought  in  the  slave 
markets  of  Delos,  Chios,  and  Byzantium.  The  vast  majority 
were  bought  slaves.  They  not  only  served  as  domestics,  but 
also  constituted  the  bulk  of  the  agricultural  laborers,  miners, 
artisans,  factory,  hands,  overseers,  and  day-laborers.  They 
also  often  carried  on  retail  trade,  and  were  sometimes  superin- 
tendents of  larger  undertakings,  money-changers,  etc.  Their 
domestic  service  often  included  private  secretaryships  and  the 


60         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

like.  The  state  itself  owned  slaves  whom  it  employed  as 
armed  police,  and  even  as  soldiers.  "  Further,  the  lower  ser- 
vants of  the  public  officials  —  accountants,  clerks,  criers,  bailiffs, 
prison-attendants,  executioners,  and  the  like,  were  for  the  most 
part,  the  latter  invariably,  public  slaves,  as  also  the  workmen 
in  the  mint."  ^  Slaves  and  metoeci  supported,  the  citizens  con- 
ducted, the  state. 

Sparta. 

95.  Fixity  of  the  Spartan  Constitution.  —  The  circum- 
stances of  her  history  gave  to  the  constitution  of  Sparta  a 
character  in  many  respects  unique,  and  secured  to  it  an  immu- 
nity from  change  which  provoked  at  once  the  wonder  and  the 
envy  of  the  rest  of  Greece.  Throughout  almost  all  of  that 
chief  period  of  Greek  history  through  which  I  have  traced  the 
development  of  the  constitution  of  Athens  —  from  the  time 
of  Solon,  namely,  till  the  decline  of  Athenian  power  and 
independence  —  the  Spartan  constitution  retained  substan- 
tially the  very  form  it  had  had  when  Sparta  first  emerged 
into  the  field  of  history.  All  its  features  are  at  once  ancient 
and  perfectly  preserved. 

96.  The  Spartans  a  Garrison  of  Conquerors.  — This  singu- 
lar  characteristic  of  that  noted  constitution  was,  as  I  have 
said,  the  natural  result  of  the  peculiar  history  of  the  city. 
The  Spartans  had  come  as  conquerors  into  the  valley  of  the 
Eurotas.  They  were  of  the  number  of  those  Dorians  with 
whose  invasion  of  Peloponnesus  visible  Greek  history  may  be 
said  to  begin,  and  their  hold  upon  their  kingdom  had  been 
gained  only  after  many  decades  —  it  may  be  only  after  sev- 
eral centuries  —  of  hard  fighting  advanced  inch  by  inch. 
Their  numerical  strength  was  not  great,  probably  at  no  time 
exceeding  fifteen  thousand ;  they  lived  in  the  midst  of  a  forci- 
bly subjected  population,  from  eight  to  ten  times  more  numer- 


1  Schomann,  352. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  61 

ous  than  themselves ;  and  they  had,  consequently,  to  maintain 
their  supremacy  rather  as  a  garrison  than  as  hereditary  heads 
of  a  natural  body  politic  such  as  had  grown  up  in  Attica. 

97.  Slaves  and  Helots.  —  There  was  no  such  body  of  slaves 
in  Sparta  as  we  have  noted  in  Athens.  Slaves  there  were, 
indeed,  but  their  number  was  never  considerable ;  there  being 
probably  only  enough  to  supply  the  wealthier  families  with 
domestic  servants.  The  burden  of  all  the  other  services 
that  were  required  in  the  simple  life  of  the  Spartan  state  fell 
upon  a  body  of  serfs  called  Helots.  The  Helots  constituted 
the  lowest  rank  of  the  subject  population  of  Laconia.  They 
were,  doubtless,  descendants  of  the  original  inhabitants  of  the 
country,  and  owed  their  degradation  to  what,  had  fortune 
favored  them,  T\'ould  have  been  accounted  a  reason  for  giving 
them  all  honor,  —  their  desperate  resistance  to  the  advance 
of  the  conquering  Dorians.  They  are  said  by  some,  indeed, 
to  have  received  their  name,  of  Helots,  from  a  town  called 
Helus  which  had  been  the  last  to  yield  itself  to  the  conquer- 
ors, or  the  most  stubborn  in  revolt  against  their  dominion 
when  that  dominion  was  young.  Their  punishment  had  con- 
sisted in  being  chained,  not  to  masters,  but  to  the  land  which 
had  once  been  their  own.  They  were  slaves  of  the  soil,  rather 
than  of  the  soil's  usurping  masters.  Though  absolutely  with- 
out freedom,  they  were  not  personal  property,  to  be  sold  or 
exchanged  in  the  market  like  the  poor  creatures  who  thronged 
the  slave-pens  of  Delos  and  Byzantium.  They  could  not 
change  service  save  as  inseparable  appendages  of  the  lands 
upon  which  they  served.  They  were,  consequently,  not  at 
the  mercy  of  the  individual  caprice  of  their  masters,  but  had 
themselves  something  of  the  inviolability  of  the  property  to 
which  they  were  attached.  They  passed  with  it,  as  part  of  it, 
and  could  not  pass  otherwise  without  special  legislative  war- 
rant. Neither  could  they  be  killed  or  misused  by  their  masters 
without  public  authority,  or  at  least  some  colorable  pretext  of 
the  public  safety.    And,  inasmuch  as  they  were  thus  a  part  of 


62         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

the  real  estate  of  the  country,  —  its  motive  part,  its  machinery 
of  production,  —  and  hedged  about  by  the  same  laws  that  regii- 
lated  the  usufruct  of  the  land,  they  were  allowed  to  retain,  for 
the  own  sustenance,  a  certain  portion  of  the  products  raised, 
by  their  labor,  that,  as  servants  of  the  land,  they  might  derive 
their  support  from  it.  In  a  sense,  they  belonged  to  the  state ; 
for  the  state  controlled,  as  itself  supreme  owner,  the  owner- 
ship of  the  land  to  which  they  were  attached.  They  looked 
to  the  state  alone,  therefore,  for  any  measure  which  was  to 
effect  their  condition  for  better  or  for  worse :  for  new  restric- 
tions in  consequence  of  their  turbulence  or  threatening  discon- 
tent, or  for  emancipation  in  return  for  such  services  as  they 
were  occasionally  able  to  render  in  war. 

98.  The  Perioeci. — Above  the  Helots  and  enjoying  a  much 
larger  measure  of  freedom,  though  scarcely  less  subject  to  the 
will  of  their  Spartan  lords,  were  the  PerioecL  The  Perioeci 
are  as  little  to  be  compared  with  the  Athenian  metoeci  as 
Spartan  Helots  with  Athenian  slaves.  Metoeci  were,  for  the 
most  part,  resident  aliens  engaged  in  trade  (sec.  93)  ;  Perioeci 
were,  so  to  say,  captives  of  the  Spartan  state,  representatives 
of  those  older  possessors  of  Laconia  who  had  escaped  Helotage 
by  being  more  submissive  than  the  men  of  Helus,  and  who,  by 
acquiescence  in  the  Dorian  mastery,  had  been  admitted  to 
what  might  have  been  called  an  alliance  with  the  Dorian 
invaders,  had  it  not  been  entered  into  through  sheer  compul- 
sion and  continued  by  mere  coercion.  They  were  the  traders 
and  mechanics  of  the  community ;  but  they  followed  these 
occupations,  which  every  Spartan  despised,  with  no  such  liberty 
and  consideration  as  the  metic  might  enjoy  at  Athens,  but  by 
the  sufferance  of  their  overlords.  They  owned  real  estate,  but 
under  laws  and  restrictions  not  of  their  own  making.  They 
formed  separate  communes  in  some  of  the  best  districts  of 
Laconia.  with  their  own  municipal  organizations,  but  their 
municipal  privileges  possibly  consisted  rather  in  an  opportu- 
nity to  determine  by  election  which  of  the  Spartans,  sent  to 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  63 

live  among  them  as  representatives  of  the  sovereign  class, 
should  rule  them  in  the  chief  offices  of  their  towns  than  in  the 
right  to  be  governed  by  men  of  their  own  class  as  well  as  of  their 
own  choosing.  They  had  a  certain  considerable  degree  of  per- 
sonal liberty,  and  they  were  suffered  to  better  their  pecuniary 
position  in  such  ways  as  they  chose ;  but  they  were  none  the 
less  a  subject  population  whose  status  depended  wholly  upon 
the  will  of  the  Spartan  government.  Of  that  government  they 
formed  no  part. 

Other  inferior  classes  there  seem  to  have  been,  occupying 
positions  intermediate  in  point  of  privilege  and  consideration 
between  the  dependent  Helots  and  Ferioeci  on  the  one  hand, 
and  the  supreme  Spartiatge  on  the  other ;  but  of  them  we  know 
little  that  is  satisfactory  or  significant.  Such  glimpses  as  we 
get  of  them  add  almost  nothing  to  our  knowledge  of  Spartan 
life  and  politics. 

99.  The  Spartiatae :  Property  Laws  and  State  Guardian- 
ship. —  The  Spartiatoe.  were  the  only  citizens.  The  Perio^ci 
outnumbered  them  three  to  one,  the  Helots  probably  twenty 
to  one ;  but  only  blood  counted  for  aught  in  the  Spartan  state, 
and  nowhere  was  a  dominant  class  more  successful  in  main- 
taining a  rigorously  exclusive  privilege.  Throughout  all  that 
period  of  Sparta's  history  which  is  best  known  and  best  worth 
knowing,  no  democratic  revolution  made  any  headway  against 
this  active,  organized,  indomitable  band  of  Spartiatce,  who  held 
the  state  as  an  army  would  hold  a  fortress.  Among  them- 
selves Spartans  were  Homoioi,  Equals ;  and  in  the  earlier  days 
of  their  government  every  means  was  employed  to  make  and 
keep  their  equality  a  reality.  In  nothing  was  this  purpose 
more  apparent  than  in  the  system  of  land  tenure.  There  was 
private  property  in  land  among  the  Spartans ;  but  the  state 
was,  as  I  have  said,  regarded  as  the  original  proprietor  of  the 
land,  and  individual  tenure  was  rather  of  the  nature  of  a  usu- 
fruct held  of  the  state  and  at  the  state's  pleasure  than  of 
a  complete  ownership.    The  purpose  of  the  early  legislation 


64         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

was  to  make  tlie  division  of  the  land  amongst  the  Spartan  fami- 
lies as  equal  as  possible;  and  the  state  frequently  resumed 
its  proprietary  rights  and  reapportioned  estates  when  grave 
inequalities  had  crept  in,  without  a  suspicion  in  any  quarter  of 
confiscation.  It  was  a  primary  care  of  the  state  to  keep  its 
citizens  rich  in  leisure,  in  order  that  they  might  live  entirely 
for  the  service  of  the  state  and  feel  no  necessity  to  engage  in 
a  pursuit  of  wealth,  which  would  not  only  withdraw  them 
from  their  bounden  political  duties,  but  also  rob  them  of  social 
consideration.  It  accordingly  undertook  the  patriarchal  duty 
of  administering  the  wealth  of  the  country  as  trustee  for  the 
citizens.  It  not  only  redistributed  estates ;  it  also  compelled 
rich  heiresses  to  marry  men  without  patrimony,  and  grafted 
the  poor  upon  good  estates  by  prescribed  adoption.  It  fol- 
lowed, of  course,  from  such  laws,  that  adoption  was  not  per- 
mitted to  swell  the  numbers  of  any  family  without  state  sanc- 
tion being  first  obtained,  that  wealthy  heiresses  were  not 
allowed  to  throw  themselves  away  on  rich  youths,  and  that 
landed  estates  could  be  alienated  from  the  family  to  which  the 
state  had  assigned  them  neither  by  sale  nor  by  testamentary 
bequest.    Citizens  were  both  wards  and  tenants  of  the  state. 

Doubtless,  however,  it  was  only  in  the  earlier  periods  of  this 
constitution  that  this  patriarchal  guardianship  and  proprietor- 
ship of  the  state  was  freely  and  effectively  exercised  for  the 
purposes  intended.  It  is  certain  that  in  later  times  great 
inequalities  of  condition  did  spring  up  among  the  so-called 
Equals ;  so  much  so  that  they  fell  at  last  into  two  distinct 
classes,  the  Few  who  were  rich,  and  the  Many  who  were  com- 
paratively or  utterly  poor.  All  Spartiatce  were  no  longer  upon 
the  same  political  level  even,  but  some  were  Homoioi  and 
some  Hupomeiones  (Inferiors). 

100.  The  Two  Kings.  —  The  government  which  the  Spar- 
tiatce  conducted  is  at  every  point  in  broad  contrast  to  the 
government  of  Athens ;  though  possibly  the  government  of 
Athens  had  not  been  entirely  unlike  it  in  principle,  previous 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  65 

to  the  contests  of  the  factions  and  the  legislation  of  Solon 
(sec.  70).  Fortune  had  given  Sparta  two  kings.  Tradition  held 
that  the  Dorian  invaders  had,  upon  entering  the  Peloponnesus, 
allotted  its  various  districts  to  their  several  Heraclid  leaders ; 
that  Aristodemus,  to  whom  Laconia  had  been  assigned,  died 
before  conquering  his  kingdom,  leaving  twin  sons,  Eurysthenes 
and  Procles;  that  the  mother  of  the  boys  declared  herself 
ignorant  which  of  the  two  was  born  first ;  that  the  Delphic 
oracle,  when  called  upon  to  arbitrate  the  claims  of  the 
brothers,  commanded  that  they  should  both  be  crowned  and 
given  joint  and  equal  authority;  and  that  from  these  two 
brothers  had  sprung  the  two  royal  houses  which  reigned  in 
Sparta.  Whatever  the  origin  of  this  double  kinship,  Sparta 
had  two  kings  till  she  had  gone  far  in  that  decline  which  pre- 
ceded Eoman  conquest.  Their  functions  were  not  widely  dif- 
ferent from  those  which  we  have  seen  the  Homeric  kings 
exercising.  They  "were  representatives  of  the  state  in  its 
dealings  with  the  gods,  deliberative  and  judicial  heads  of  the 
people  in  time  of  peace,  and  commanders  in  time  of  war."  ^ 
The  limitations  by  which  their  prerogatives  were  surrounded 
will  appear  in  what  remains  to  be  said  of  the  other  institutions 
of  the  state. 

101.  The  Council  of  Elders.  —  In  deliberation  and  legisla- 
tion they  were,  still  after  the  manner  of  the  Homeric  constitu- 
tion, associated  with  a  Oerusia  (yepova-ta),  or  Council  of  Elders. 
The  members  of  the  Gerusia,  however,  unlike  the  Elders  of 
the  more  ancient  Council,  were  elected  by  the  popular  Assem- 
bly (sec.  103).  They  were  twenty-eight  in  number  (consti- 
tuting, with  the  kings,  a  body  of  thirty)  ;  each  member  was 
required  to  be  at  least  sixty  years  of  age ;  and  all  held  office 
for  life.  As  a  court  of  justice,  the  Gerusia  had  jurisdiction 
over  the  kings,  over  capital  offences,  and  over  cases  of  atimia, 
or  attainder.    As  a  legislature,  its  functions  were  in  part  sov- 


1  Schomann,  p.  227. 


66         THE  GOVERNMENTS  OF  GREECE  AND  KOME. 


ereign,  in  part  prohouleutic :  it  acted  finally  upon  most  state 
matters  of  importance,  and  prepared  by  preliminary  decree 
the  few  measures  which  were  to  be  submitted  to  the  vote  of 
the  popular  Assembly.  It  stands  in  character  and  functions 
half-way  between  the  Athenian  Senate  of  the  Areopagus  and 
the  Athenian  Senate  of  Four  Hundred  (sees.  76,  77). 

102.  The  Assembly.  —  The  Assembly  consisted  of  all  citi- 
zens (that  is,  all  Spartiatce)  over  thirty  years  of  age.  The 
matters  which  were  referred  to  its  vote  were,  disputed  succes- 
sions to  the  throne,  the  election  of  magistrates  and  Gerontes 
(Elders),  war  and  peace,  and  treaties  with  foreign  states.  I 
have  said  only  that  these  matters  were  referred  '  to  the  vote ' 
of  the  Assembly  because  they  were  not  referred  to  its  con- 
sideration. No  place  was  given  in  the  Assembly  to  real 
deliberation;  only  the  kings,  the  Ephors,  and  the  Gerontes 
could  either  make  a  motion  or  take  part  in  debate.  Indeed, 
debate  was  a  thing  hardly  known  in  Sparta,  w^here  every  man 
was  taught  to  despise  the  talker  and  to  admire  the  man  w^hom 
later  times  were  to  dub  the  'laconic'  man.  The  utterances 
of  the  magistrates  and  senators  in  the  Assembly  were  proba- 
bly curt  opinions  packed  into  a  few  scant  sentences.  And  the 
voting  was  as  informal  as  the  debating.  A  division  was  seldom 
resorted  to ;  a  viva  voce  vote  decided. 

103.  Election  of  Elders.  —  Only  in  the  election  of  Gerontes  was  a 
different  and  more  elaborate  procedure  observed.  Then,  after  the 
Assembly  had  convened,  several  persons  selected  for  the  purpose  sta- 
tioned themselves  in  a  building  near  the  place  of  assembling,  from 
whence  they  could  get  no  view  of  the  Assembly,  but  where  they  could 
hear  the  voices  of  the  assembled  people.  Upon  the  completion  of  this 
arrangement,  the  candidates  for  the  Gerusia  passed  through  tlie  Assem- 
bly, in  an  order  determined  by  a  lot  whose  result  was  unknown  to  the 
listening  committee  near  by,  and  the  choice  of  the  Assembly  was  ascer- 
tained by  the  decision  of  the  concealed  deputation  as  to  which  of  the 
successive  shouts  of  applause  that  had  greeted  the  candidates  as  they 
made  their  appearance  had  been  the  most  spontaneous  nnd  full-throated. 
This  election  by  applause  was,  of  course,  just  an  elaborate  form  of  viva 
voce  voting. 


THE  GOVERKMENTS  OF  GREECE  AND  ROME.  6? 

104.  The  Ephors.  —  The  most  notable  and  powerful  office 
known  to  the  constitution  of  Sparta  was  the  office  of  Ephor. 
It  was  an  office,  there  is  reason  to  believe,  of  great  antiquity ; 
but  development  had  hurried  it  very  rapidly  away  from  its 
early  form  and  character.  The  five  Ephors  (or  Overseers,  for 
such  is  the  meaning  of  the  title)  were  originally  mere  deputies 
of  the  kings,  appointed  to  assist  them  in  the  performance  of 
their  judicial  duties,  to  act  as  vice-regents  in  the  absence  of 
their  royal  principals,  to  supervise  in  the  name  of  the  kings 
the  other  magistrates  of  the  state,  to  superintend,  under  the 
same  authority,  the  public  discipline,  and  to  summon,  by  royal 
warrant,  the  Gerusia  and  the  Assembly ;  in  short,  to  serve  in 
all  things  as  the  assistants  of  the  kings.  But  gradually, 
through  the  operation  of  causes  for  the  most  part  hidden  from 
our  view,  but  possibly  in  part  because  they  sympathized  more 
with  the  citizens  from  whose  ranks  they  were  yearly  drawn 
than  with  the  kings  who  appointed  them,  and  in  part  because 
they  were  chosen  by  two  kings  not  always  harmonious  in  their 
counsels  or  purposes,  and  were  thus  kept  away  from  sympathy 
with  the  royal  administration  as  a  whole,  the  ephors  drew 
steadily  away  from  the  control  of  the  kings,  until  at  length 
their  power  was  not  only  independent  of  the  authority  of  the 
throne,  but  even  superior  to  it.  It  was  as  if  the  Athenian 
king  had  appointed  archons  to  assist  him  in  various  state 
functions,  only  to  see  them  step  by  step  overtop  the  throne 
itself  and  leave  him  only  the  name  of  king.  There  is  no  clear 
evidence  that  the  choice  of  the  five  ephors  passed  at  any  time 
away  from  the  kings  ;  but  the  ephors  certainly  exchanged 
their  character  of  representatives  of  the  kings  for  that  of 
representatives  of  the  state  and  virtual  masters  of  the  kings, 
—  overseers  of  the  chief  magistrates  as  well  as  of  all  others. 
The  kings  were  obliged  every  month  to  take  an  oath  to  this 
supreme  board  of  five  to  exercise  their  prerogatives  according 
to  the  laws ;  the  ephors,  on  their  part,  undertaking,  on  behalf 
of  the  people,  that  so  long  as  this  oath  should  be  observed  the 


68         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

kings'  power  sliould  pass  unchallenged.  Every  nine  years  the 
ephors  asked  of  the  gods  a  sign  from  the  heavens  as  to 
whether  anything  had  been  done  amiss  by  the  kings,  and  if 
the  heavens  revealed  any  sinister  omen,  the  conduct  of  the 
kings  was,  upon  the  initiative  of  the  ephors,  investigated  by 
the  Gerusia.  Private  individuals,  besides,  could  bring  charges 
against  the  kings  to  the  notice  of  the  ephors,  and  it  rested 
with  them  to  dismiss  the  charges  (to  answer  which  they  could 
summon  the  kings  before  them),  or  to  push  them  in  the 
Gerusia. 

105.  Of  course,  if  masters  of  the  kings,  the  ephors  were 
masters  of  all  others  in  the  state  also.  They  could  interfere, 
with  full  power  to  investigate  and  to  punish,  in  every  depart- 
ment of  the  administration;  the  supervision  of  the  public 
discipline,  and  consequently  of  the  private  life  of  every  in- 
dividual, rested  with  them  as  overseers  of  the  special  officers 
of  the  discipline ;  they  could  summon  the  Gerusia  and  the 
Assembly  and  lay  before  them  any  matters  they  chose ;  they 
were  the  treasurers  of  the  state ;  in  everything  they  were  the 
supreme  authority.  The  limitations  of  their  power  lay  in  the 
fact  that  they  were  a  board  of  five  men  and  could  do  nothing 
of  importance  except  by  a  unanimous  resolve,  and  that,  their 
power  lasting  but  a  single  year,  they  would  presently  become 
private  citizens  again,  liable  to  accusation  and  punishment  by 
their  successors. 

One  of  the  board,  like  one  of  the  Athenian  arclions,  was  Eplior 
Eponymus,  giving  his  name  to  the  civil  year. 

106.  The  Administration  of  Justice.  —  With  reference  to 
the  administration  of  justice  in  Sparta  we  are  not  able  to  say 
much  more  than  that  the  law  was  interpreted  and  applied  by 
the  kings  in  cases  relating  to  the  family,  to  inheritances,  or  to 
the  redistribution  of  property  by  marriages  between  rich  and 
poor  (the  kings  being,  so  to  say,  Chancellors,  and  families 
wards  in  Chancery)  ;  that  cases  affecting  the  kings  themselves 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  69 

or  involving  the  highest  sort  of  crimes  were  heard  by  the 
Gerusia;  and  that  all  other  cases  were  determined  by  the 
ephors  or  by  lesser  magistrates.  There  were  no  popular  jury- 
courts. 

107.  The  State  Discipline.  —  But  the  feature  of  their  con- 
stitution which  chiefly  preserved  the  supremacy  of  the  Spar- 
tiatce  over  the  subject  population  of  Helots  and  Penoeci,  and 
made  Sparta  Sparta  in  the  eyes  of  the  rest  of  the  world,  was 
the  State  Discipline.  Every  Spartan  lived  the  life  of  a  soldier 
in  garrison.  He  did  not  belong  to  himself,  but  to  the  state. 
He  was  taken  from  his  parents  at  seven  years  of  age,  and 
from  that  time  until  he  was  sixt}"  lived  altogether  in  public, 
under  a  drill  of  muscle,  appetite,  and  manners  such  as  not 
even  a  modern  professional  athlete  could  well  imagine.  From 
seven  to  thirty  (thirty  being  the  age  of  majority  in  Spartan 
law)  he  was  schooled  to  endure  the  roughest  fare,  the  scantiest 
clothing,  the  poorest  lodging,  and  the  completest  subordina- 
tion to  his  elders.  After  thirty  he  acquired  certain  political 
and  social  privileges  :  he  was  then  a  citizen,  and  he  could 
marry ;  but  even  then  he  was  permitted  no  essential  change 
of  life.  He  was  expected  to  keep  up  his  athletic  habit  of 
body,  he  must  still  eat  at  the  public  messes,  could  have  no 
home  life,  but  must  see  his  wife  only  infrequently  for  a  few 
minutes,  or  by  stealth.  He  7nust  marry, — the  state  required 
that  of  him,  —  and  must  consequently  maintain  a  household. 
He  must  also  contribute  his  share  of  money  and  supplies  to 
the  public  messes  (Syssitia).  Only  when  he  had  passed  his 
sixtieth  year  could  he  in  any  measure  lead  his  own  life  or 
follow  his  own  devices. 

It  was  probably  failure  to  comply  with  the  requirements  of  this  dis- 
cipline or  to  contribute  the  required  quotas  to  the  Syssitia,  that  de- 
graded Spartiatce  from  'Equals'  to  'Inferiors'  (sec.  99), 

This  discipline  included  the  women  only  during  their  youth ; 
girls  had  to  '  take '  gymnastics  as  the  boys  did ;  but  they  did 


70         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

not  go  on  into  the  discipline  of  the  men.  All  education  which 
we  should  account  education  was  excluded  from  the  system. 
Only  music  of  a  rude  sort,  the  use  of  simple  stringed  instru- 
ments and  a  taste  for  the  songs  of  war,  softened  the  constant 
training  of  sense  and  sinew.  The  product  was  a  fine  soldiery 
and  noble  soldiers'  mates,  — shapely,  sturdy  women,  and  lithe, 
laconic  men. 

108.  Principle  of  Growth  in  the  Spartan  Constitution.  — 

The  constitution  of  Sparta,  for  all  it  is  so  symmetrical,  is  not  to 
be  looked  upon  as  a  creation,  any  more  than  is  that  of  Athens 
or  of  any  other  Hellenic  city ;  and  the  mind  must  not  be  mis- 
led (by  the  fact  that  in  describing  it  we  are  under  the  necessity 
of  taking  it  at  some  one  moment  of  complete  crystallization) 
into  supposing  that  such  was  exactly  its  form  at  every  period 
of  its  history.  It  was,  like  every  other  constitution,  a  slowly 
developed  organism.  It  early  took  a  peculiar  form,  and  long 
preserved  it,  because  of  the  peculiar  situation  of  the  Spartans, 
who  were  few  and  had  to  hold  their  power  against  a  hostile 
subject  population  greatly  superior  to  them  in  numbers.  They 
could  not  venture  to  relax  for  a  moment  their  internal  disci- 
pline ;  and  so  it  happened  that  throughout  the  period  during 
which  history  is  most  concerned  with  Sparta  her  constitution 
remained  fixed  in  this  single  form.  But  afterwards  it  passed 
through  the  same  stages  of  tyranny  and  democracy  that  had 
come  to  Athens  so  much  earlier.  The  non-citizen  classes  even- 
tually broke  their  way  in  large  numbers  into  the  constitution, 
and  the  Eomans  found  Sparta  not  unlike  the  other  cities  of 
Greece. 

109.  Lycurgus.  —  The  Spartans  themselves,  however,  as  I 
have  said  in  a  previous  chapter  (sec.  19),  regarded  their  constitu- 
tion as  a  creation,  the  creation  of  one  man,  Lycurgus  (b.c.  820). 
To  him  was  ascribed  a  rearrangement  of  the  three  tribes  which 
constituted  the  state,  a  division  of  land  between  Spartiatoe  and 
Perioeci,  the  institution  of  the  Gerusia,  a  provision  that  there 
should  be*  monthly  meetings  of  the  Assembly,  and,  above  all, 


THE  GOVERNMENTS  OF  GKEECE  AND  ROME.  71 

the  creation  of  the  celebrated  system  of  state  discipline ;  and 
it  is  probable  that  he  was  very  largely  instrumental  in  giving 
to  the  constitution  the  particular  form  in  which  we  have  seen 
it.  But  it  is  extremely  improbable,  if  not  intrinsically  impos- 
sible, that  he  can  have  done  much  more  in  the  way  of  effecting 
actual  fundamental  changes  than  did  Solon  or  Clisthenes  at 
Athens.  The  Spartan  constitution  had  probably  made  no 
leaps  or  bounds ;  Lycurgus,  doubtless,  only  guided  its  course 
at  a  very  critical,  because  consciously  formative,  period. 

Greek  Admixistratiox. 

110.  We  are  without  detailed  information  with  regard  to 
the  methods  and  machinery  of  administration  in  the  Greek 
cities.  The  little  of  universal  applicability  that  we  can  say 
of  the  conduct  of  the  government  in  the  smaller  particulars  of 
the  every-day  application  and  execution  of  the  law,  is  of  a  very 
general  sort,  which  does  not  describe  exactly  the  administra- 
tion of  any  one  city,  but  gives  in  bare  outline  functions  per- 
formed, doubtless,  by  a  multiplicity  of  oificers  in  the  larger 
cities,  but  in  the  smaller  cities  by  only  a  few  officers  saddled 
with  a  multiplicity  of  duties.  Aristotle  gives  us  a  list  of  the 
tasks  commonly  considered  proper  to  administration  in  Greece, 
and  it  is  chiefly  upon  this  list  that  we  must  rely  for  a  general 
view  of  the  subject.^  From  it  we  learn  that  the  governments 
of  the  Greek  cities  usually  undertook  the  superintendence  of 
trade  and  commerce,  particularly  within  the  city  markets,  the 
inspection  of  public  buildings,  "a  police  supervision  over 
houses  and  streets,"  and  the  oversight  of  fields  and  forests ; 
that  they  had  receivers  and  treasurers  of  the  public  moneys, 
officers  whose  duty  it  was  to  draw  up  documents  relating  to 
legal  business  and  judicial  decisions,  to  hear  complaints,  and 
to  issue  warrants  for  the  institution  of  legal  processes,  bailiffs, 


1  Schomann,  p.  138;  Aristotle,  Folitics. 


72         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

jailers,  etc.  Besides  these  officials,  there  were  the  officers  of 
the  naval  and  military  administration,  at  whose  head  stood 
such  dignitaries  as  the  Athenian  Archon  Polemarchus  or  the 
later  Athenian  Strategoi ;  the  functionaries  whose  duty  it  was 
to  audit  the  accounts  and  review  the  proceedings  of  those  who 
handled  the  revenues  of  the  state ;  and  the  superintendents  of 
the  public  worship,  —  those  officers  who  still  in  most  cases 
bore  the  ancient  royal  title,  long  since  banished  from  secular 
politics,  but  retained  in  the  religious  hierarchy  in  memory  of 
a  kingly  function  too  much  revered  by  men,  and  thought  to  be 
too  much  esteemed  by  the  gods  themselves,  to  be  exercised  by 
any  save  those  who  bore  this  oldest  and  most  hallowed  of  titles 
(sec.  69). 

In  states  like  Sparta,  where  civil  life  was  a  rigorous  disci- 
pline, there  were,  of  course,  special  officers  to  superintend  the 
training  of  the  young  and  the  conduct  of  the  adult  of  both 
sexes.  Sparta  had,  too,  her  public  cooks  to  prepare  the  coarse 
diet  of  the  Syssitia,  and  her  superintendents  of  the  public 
messes. 

Hellas. 

111.  Greece  not  Hellas.  —  Although  typical  of  much  in 
larger  Hellenic  history,  the  political  development  of  Athens 
and  Sparta  by  no  means  sums  up  the  political  history  of  the 
Greeks.  Athens  and  Sparta  stand  out  conspicuous  and  regnant 
among  the  classical  states  of  Greece  ;  but  European  Greece  was 
not  the  only  home  of  the  Greek  peoples.  It  was  not  their 
chief  home ;  it  was  not  always  even  the  pivotal  centre  of  the 
world  which  they  had  made  their  own  in  the  islands  and  the 
peninsulas  of  the  Mediterranean.  Far  and  wide  outside  of  Cen- 
tral Greece  lay  the  varied  settlements  which,  together  with  the 
city  states  of  the  classical  mainland,  made  up  Greater  Greece. 
The  name  Hellas,  therefore,  does  not  designate  any  particular 
country :  it  no  more  represents  a  geographical  unit  than  does 
the  term  British  Empire.    Wherever  Greeks  established  them- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  73 

selves  in  independence,  setting  up  their  own  civilization  and 
characteristic  forms  of  government,  there  was  a  piece  of  Hellas ; 
wherever  there  was  an  Hellenic  people  there  was  a  portion  of 
the  Hellenic  land.  The  Greeks  never  formed  and  maintained 
a  common  political  organization,  never  knew  national  political 
union:  'Hellas,'  therefore,  has  no  organic  or  national  signifi- 
cance.   It  means  a  region,  not  a  nation. 

112.  Original  Migrations  of  the  Greeks.  —  The  Greeks  long 
consorted,  as  w^e  have  seen  (sees.  35,  41),  with  their  cousin 
Celts  and  Latins  in  the  great  movement  of  the  Aryan  peoples 
into  Western  Europe  ;  but  an  eventual  separation  of  these  three 
branches  of  the  single  parent  stock  resulted  in  the  widest  diver- 
gences both  of  fortune  and  of  character  among  them.  The 
Celts  pressed  on  into  the  body  of  the  continent  without  con- 
tact with  the  sea ;  the  Latins  slowly  penetrated  by  land  into 
the  spacious  peninsula  of  Italy ;  but  the  Greeks  tarried  in  the 
mountains  of  Phrygia,  thence  to  issue  forth  to  their  contact 
with  the  ^gean  and  their  association  with  the  sea-faring  Phoe- 
nicians. First,  it  would  seem,  they  poured  a  numerous  popu- 
lation over  the  Hellespont  into  Europe,  a  population  which 
was  to  occupy  in  time,  not  only  Greece  proper  and  the  Pelopon- 
nesus, but  also  all  the  coasts  and  islands  of  the  ^gean.  At 
a  later  time  smaller  companies,  single  tribes,  issued  forth  to  the 
conquest  of  special  tracts  of  the  inviting  coasts  of  Asia  Minor 
or  followed  the  earlier  emigrants  into  the  peninsula.  Thus  the 
ancestors  of  the  lonians  are  said  to  have  effected  in  that  '  pre- 
historic '  time  their  settlements  upon  the  Asiatic  shores  of  the 
^gean ;  and  the  ancestors  of  the  Dorians  to  have  entered  the 
mountain  country  of  Northern  Greece,  whence  at  a  later  time 
the  Dorian  conquerors  of  the  Peloponnesus  were  to  sally  forth 
to  perform  the  first  act  of  authentic  Greek  history  (sec.  96). 

113.  The  Phoenician  Influence.  — It  was  the  lonians,  thus 
made  neighbors  to  the  great  sea,  who  received  for  the  Greeks 
the  deep  and  lasting  imprint  of  the  Phoenician  influence.  The 
Phoenicians  were  then  already  old  in  civilization  and  in  com- 


74         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

mercial  enterprise.  They  had  been  traders  ever  since  the  six- 
teenth century  before  Christ,  and  were  elders  among  the 
nations  of  their  time.  It  was  of  course  inevitable  that  the 
unformed  Greeks  should  learn  from  them  as  from  masters. 
And  they  learned  much.  They  probably  learned  from  these 
first  lords  of  the  Mediterranean  not  only  navigation  and  ship- 
building, but  also  the  use  of  weights  and  measures,  their  alpha- 
bet, and  much  antique  taste  and  knowledge  in  the  fields  of  art 
and  science.  By  the  lonians,  probably,  this  eastern  culture 
was  communicated  to  European  Greeks.  Finally  it  became  an 
integral  part  of  Hellenic  thought  and  habit,  hardly  to  be  dis- 
tinguished as  of  foreign  origin. 

114.  Later  Migrations  of  the  European  Greeks.  —  The  first 
settlements  of  the  Greeks  in  the  European  peninsula  to  which 
they  were  to  give  their  name  were  not  their  final  settlements 
there.  Later  days  witnessed  many  important  readjustments. 
Thessalians  entered  the  northern  portions  of  the  peninsula,  to 
make  it  '  Thessaly,'  driving  the  ^olians  already  settled  there 
into  new  homes  further  south,  in  Boeotia ;  the  Dorians  made 
their  great  conquering  movement  southward  into  Peloponnesus, 
displacing  there  the  ^olian  Achseans,  who,  thus  ousted,  in  their 
turn  expelled  an  Ionian  population  from  a  narrow,  sheltered 
strip  of  the  Corinthian  gulf  coast,  to  which  they  gave  its  his- 
toric name,  Achaia ;  and  many  of  the  lonians,  thus  expelled 
from  their  early  seats  in  Peloponnesus,  passed  northward  to 
join  their  kinsmen  in  Attica.  Thus  was  that  distribution  of 
races  effected  in  Greece  which  was  to  characterize  the  classical 
period  of  Greek  history. 

115.  Resettlement  of  the  Asiatic  Coasts  from  Greece. — 
But  these  movements  of  the  races  did  not  stop  with  the  read- 
justments thus  effected  on  the  peninsula.  Attica  could  not 
easily  contain  the  Ionian  immigration  which  came  to  her,  so 
to  say,  from  the  hands  of  the  Achseans.  Many,  therefore, 
passed  on  from  Attica  to  found  new  Ionian  settlements  on  the 
central  ^gean  coasts  of  Asia  Minor.    Yet  earlier,  bodies  of 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  75 

Achaeans,  still  under  the  impulse,  perhaps,  which  they  had  re- 
ceived from  the  Dorians,  had  gone  from  Achaia  to  occupy  the 
northwest  regions  of  the  same  Asiatic  coast.  Even  the  Do- 
rians passed  on  into  Asia  from  Peloponnesus,  taking  posses- 
sion of  the  southwestern  coasts  of  Asia  Minor  and  establishing 
themselves  in  the  islands  of  Crete,  Cos,  and  Ehodes.  The  Do- 
rians, indeed,  had  become  supreme  only  in  the  southern  and 
eastern  portions  of  the  Peloponnesus,  only  in  Messenia,  Laconia, 
and  Argolis.  The  settlements  in  the  southern  islands  of  the 
^gean  archipelago  and  on  the  southwestern  coasts  of  Asia 
Minor  symmetrically  completed  their  geographical  position  as 
a  sort  of  southern  fringe  to  classical  Hellas. 

It  is,  doubtless,  to  this  period  of  the  resettlement  of  Asia  Minor  by 
the  European  Greeks,  thus  returning  upon  the  original  lines  of  Greek 
movement,  that  vre  owe  the  legend  of  the  Trojan  war.  Really  kinsmen 
of  the  Trojans,  the  European  Greeks  went  against  this  power  of  oldest 
Greece  as  against  an  alien  and  a  strange  people. 

116.  The  Greek  Mediterranean.  —  Nor  was  even  this  the 
last  of  movement  and  new  settlement  on  the  part  of  the  rest- 
less Greeks.  They  were  yet  to  add  to  a  Greek  ^gean  a  Greek 
Mediterranean.  This  they  effected  by  means  of  the  notable 
colonization  of  the  eighth  and  seventh  centuries  before  Christ. 
Foremost  among  the  colonizers  stood  Ionian  ]\tiletus,  in  Asia 
Minor,  and  Ionian  Chalcis,  in  Euboea.  Miletus  became  the 
mother  of  more  than  eighty  colonies,  sending  companies  of  her 
people  to  found  Naucratis  on  the  Nile  delta,  Cyzicus  and  Sinope, 
and  a  score  or  two  of  other  towns  on  the  Propontis ;  making 
settlements  further  away  still,  where  she  did  so  much  of  her 
trading,  on  the  shores  of  the  Euxine.  Chalcis  contributed 
thriving  Greek  communities  to  Sicily,  created  the  '  Chalcidici,' 
and  founded  Rhegium  in  Italy.  Others  were  scarcely  less  busy 
in  colonization.  Spartans  created  the  notable  city  of  Tarentum, 
in  Southern  Italy ;  Achseans  built  upon  the  same  coast  the  rival 
cities  of  Sybaris  and  Croton ;  Corinthians  established  Corcyra 


76         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

off  the  coast  of  Epirus,  and  lusty  Syracuse  in  Sicily.  The 
Ionian  Phocseans  ventured  still  further  west  and  built  that 
Massalia  which  was  to  become  French  Marseilles.  Massalia, 
in  her  turn,  sent  colonists  to  the  eastern  coasts  of  Spain ;  and 
these  were  kept  back  only  by  the  power  of  Carthage,  probably, 
from  spreading  wider  still  Greek  settlement  and  dominion  in 
the  west.  In  brief,  it  was  a  distinguishing  characteristic  of 
the  whole  process  by  which  the  Mediterranean  was  at  this  time 
so  largely  Hellenized  that  towns  begat  towns  in  prolific  gener- 
ation. Each  colony  was  sure  to  become  itself  a  mother  city. 
The  process  was  of  two  centuries'  duration,  extending  from  about 
750  B.C.  to  about  550  b.c.  But  so  rapidly  did  it  move,  so  much 
faster  did  the  colonies  develop  in  all  respects  than  the  mother 
cities  of  the  central  Greek  lands,  that  in  the  first  century  after 
the  beginning  of  the  Olympiad  reckoning  (776-676  b.c.)  the 
"  centre  of  gravity  of  the  Hellenic  world  "  had  already  shifted 
from  Greece  proper  to  the  lusty  colonial  states.  In  Cicero's 
phrase,  an  Hellenic  hem  was  woven  about  the  barbarian  lands 
of  the  Mediterranean.  From  far  eastern  Naucratis,  on  the  Nile, 
to  far  western  Massalia,  in  Gaul,  throughout  almost  all  the 
chief  islands  of  the  sea,  skirting  the  shores  of  Propontis  and 
Euxine,  as  well  as  on  every  Mediterranean  coast  not  dominated 
by  Phoenicians,  thronged  busy  Hellenic  colonies,  impressing 
everywhere  upon  the  life  of  that  early  time  their  characteristic 
touch  of  energy,  of  ordered  government,  of  bold  and  penetrating 
thought  and  courageous  adventure,  and  everywhere  keeping 
themselves  separate,  in  proud  distinctness,  from  the  barbarian 
peoples  round  about  them. 

117.  Race  Distribution.  —  The  distribution  thus  effected  of  the  va- 
rious brandies  of  tlie  Greek  race  is  not  without  its  historical  interest. 
The  ^gean  is  circled,  east,  north,  west,  and  south,  by  Ionian  settlements, 
only  Thessaly  and  the  ^olian  colonies  on  the  northwestern  coast  of 
Asia  Minor  breaking  their  continuity  from  Euboea  round  by  the  Chalci- 
dici  and  Thrace,  down  the  eastern  coast  of  the  ^gean,  through  the 
islands  of  Samos,  Icaria,  Naxos,  Paros,  Tenos,  and  Andros,  to  Euboea 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  77 

again.  South  of  this  Ionian  circle  is  the  Dorian  semicircle,  which  runs 
through  Crete,  Carpathus,  and  Rhodes  to  the  islands  and  coasts  of 
Southwestern  Asia  Minor.  Italy  is  occupied,  for  the  most  part,  by 
-^olian  settlers,  though  a  Dorian  city*stands  at  one  end,  an  Ionian  city 
at  the  other,  of  the  line  of  -^olian  colonies  there.  Sicily  is  shared  by 
Dorians  and  lonians. 

Everywhere,  however  close  they  may  live  to  each  other,  these  several 
tribes  retain  their  distinctness,  conscious  of  kinship  and  using  substan- 
tially the  same  speech,  but  persisting  in  noticeable  differences  of  char- 
acter and  rivalries  of  aim. 

118.  The  Greek  Colonial  System.  —  There  was  little  or 
no  political  unity  even  among  cities  of  the  same  division  of 
the  race.  No  common  system  of  government  bound  the  towns 
of  any  coast  together  ;  everywhere,  on  the  contrary,  they  stood 
aloof  from  each  other,  organically  separate  and  self-directive. 
Greek  colonization  was  radically  different  from  the  coloniza- 
tion which  the  modern  world  has  seen,  and  even  from  that 
which  the  Roman  world  saw.  A  mother  city  kept  no  hold 
upon  her  colonies  whatever,  except  a  very  vague  hold  of  relig- 
ious sentiment  which  even  very  slight  strains  of  adverse  cir- 
cumstance often  sufficed  to  destroy.  Colonies  went  out  to 
become  cities,  in  the  full  antique  sense  of  that  term,  com- 
pletely independent,  self-governing  communities,  namely. 

The  mother  city  sent  out  each  colonizing  company  that  left 
her  as  if  she  were  sending  out  a  part  of  herself.  The  emi- 
grants took  with  them  fire  kindled  at  the  public  hearth  {pry- 
taneum),  wherewith  to  furnish  their  own  altars  with  the  sacred 
flame  .kept  alive  from  of  old  in  the  religious  rites  of  their 
kinsmen ;  the  mother  city  supplied  them  with  a  leader  whom 
the  colonists  recognized  as  their  founder ;  the  approval  of  the 
Delphic  oracle  was  often  sought  by  the  emigrants,  and  they 
generally  awaited,  too,  the  consent  of  the  city's  gods.  If,  more- 
over, in  after  times,  a  colony  contemplated  sending  out  from 
its  own  midst  another  colony,  it  commonly  sought  a  leader  and 
founder  at  the  hands  of  its  own  mother  city.  Many  ties  of 
sentiment  and  tradition  bound  it  to  the  community  from  which 


78         THE  GOVERmiENTS  OF  GREECE  AKD  ROME. 

it  had  sprung.  But  none  the  less  did  it  become,  immediately 
upon  its  birth,  a  sovereignly  separate  state,  no  less  its  own 
mistress  in  all  things  than  ,the  city  from  which  it  had  come 
out.  The  Mediterranean  was  fringed,  not  by  a  few  Grecian 
states,  aggregates  of  ^olian,  Dorian,  or  Ionian  settlements, 
but  by  scores  of  separate  city  communities  as  independent,  for 
the  most  part,  and  often  as  proud,  as  Athens,  —  not  unfre- 
quently  as  powerful  also  as  she. 

119.  Colonial  Constitutions. — It  was  natural  that  each 
colony  should  retain  in  its  political  arrangements  the  main 
features  of  the  constitution  of  its  mother  city ;  and  in  the 
earlier  periods  of  colonization  the  Greek  world  may  be  said 
not  to  have  known  any  political  organization  but  the  aristo- 
cratic, in  which  the  elders  of  the  older  kinship  dominated  with 
assured,  almost  with  unquestioned,  authority.  The  earliest 
periods  of  colonization,  it  is  true,  were  the  periods  of  mon- 
archy ;  but  of  monarchy  already  in  decay.  The  aristocratic 
organization  was,  accordingly,  at  first,  almost  everywhere  either 
produced  or  reproduced  in  the  colonies.  But  it  was  destined 
from  the  nature  of  the  case  to  undergo  in  these  newer  com- 
munities much  more  rapid  changes  than  overtook  it  in  the 
states  of  the  older  Hellenic  lands.  Among  colonists  settling 
in  regions  as  yet  untouched  by  their  own  civilization  there 
necessarily  obtained  an  equality  of  condition,  and  presently  an 
absence  of  clear  traditional  authority,  which  made  democracy 
grow  as  if  it  were  a  natural  product  of  the  soil,  and  of  the 
new  atmospheric  conditions.  Accordingly  democracy  ^as  de- 
veloped in  the  outlying  parts  very  much  sooner  than  in  the 
central  lands  of  Hellas.  Athens  waited  till  the  end  of  the 
sixth  century  b.c.  to  see  it  in  the  reforms  of  Clisthenes  (sees. 
81-87)  ;  while  many  of  the  newer  states  had  witnessed  its 
introduction  quite  a  centur}^  earlier. 

120.  Although  they  outran  the  mother  cities  of  Central 
Greece,  however,  in  their  changes  of  constitution,  the  colonial 
cities  generally  went  through  just  the  same  phases  and  stages 


THE  GOVERNMENTS  OF  GREECE  AND  ROME,  79 

of  change  that  were  afterwards  to  characterize  the  revolu- 
tions and  reforms  of  Athens  which  we  have  already  exam- 
ined. Democracy  was  generally  api^roached  through  Timoc- 
racy,  through  arrangements,  that  is,  such  as  Solon  introduced 
in  Athens,  by  which  political  privilege  was  graded  according 
to  wealth  (sees.  73,  74).  Often,  too,  changes  of  this  nature 
were  accompanied  in  the  colonies,  as  in  Eome  (XII  Tables) 
and  in  many  of  the  central  Greek  communities,  by  a  codifica- 
tion and  publication  of  the  law.  Commonly,  besides,  democ- 
racies gave  place  to  tyrannies,  which  were  often,  like  that  of 
Pisistratus  in  Athens  (sec.  80),  erected  as  a  bulwark  against 
aristocratic  reaction.  Either  some  man  of  the  people  pushed 
himself  forward,  by  fair  means  or  by  foul,  and  checked  aristo- 
cratic domination  by  reducing  all  alike  to  submission  to  his 
own  power ;  or  it  was  a  member  of  the  aristocratic  class  who 
made  use  of  a  favoring  opportunity  to  destroy  aristocracy  by 
a  concentration  of  authority  in  himself.  In  either  case  the 
tyranny  answered  a  useful  purpose.  It  generally  compacted 
and  facilitated  resistance  to  outside  aggressions  upon  the  inde- 
pendence of  the  city ;  it  usually  advanced, by  the  maintenance 
of  steadied  civil  order,  the  material  interests  of  the  community ; 
it  not  infrequently  bridged  safely  over  the  gulf  which  separated 
aristocratic  privilege  from  popular  sovereignty,  preparing  the 
levels  of  status  upon  which  alone  democracy  could  be  firmly 
built. 

121.  Law  of  Constitutional  Modification  in  Hellas.  —  We  have, 

thus,  the  same  forces  of  constitutional  change  everywhere  operative  in 
the  Greek  world ;  everywhere  substantially  the  same  changes  take  place 
in  substantially  the  same  order.  Monarchy  in  all  cases  gives  place 
to  aristocracy;  aristocracy  very  often  shades  ofE  into  timocracy;  all 
exclusive  privileges  in  the  long  run  give  way  before  the  forces  of  de- 
mocracy ;  but  democracy  is  seldom  secured  its  final  triumph  without  the 
intervention  of  the  tyrant,  the  man  who  rules  without  the  warrant  of 
the  law.  In  some  of  the  greater  Hellenic  cities  the  period  of  tyranny 
is  the  period  of  highest  power  and  prosperity,  and  democracy  comes 
afterwards  only  to  mark  decline  and  loss  of  separate  independence. 


80         THE  GOVERmiENTS  OF  GREECE  AND  ROME. 


Many  Peloponnesian  communities  cling  as  long  almost  as  Sparta  herself 
to  their  aristocratic  constitutions :  in  them  class  privilege  dies  exceed- 
ing hard.  There  is  by  no  means  a  perfect  uniformity  in  Hellas  either 
in  the  speed  or  in  the  character  of  political  change ;  but  everywhere, 
unless  outside  circumstance  commands  otherwise,  the  same  tendencies, 
the  same  leaven  of  plebeian  discontent,  the  same  ferment  of  personal 
ambition,  are  operative  to  work  out  within  each  little,  self-centred  city 
state,  similar  modifications  of  organization  and  authority. 

122.  Union  and  Nationality  among  the  Greeks. —  Despite 
the  separateness  of  Greek  city  life  and  its  jealous  negation  of  all 
political  power  save  only  that  of  the  citizens  of  each  commu- 
nity acting  independently  and  for  themselves,  there  was  a  dis- 
tinct consciousness  in  the  minds  of  all  Greeks  alike  of  a  com- 
mon Hellenic  blood,  common  traditions,  a  common  religion  and 
civilization.  A  sense  of  nationality  which,  though  vague,  was 
nevertheless  persistent  and  on  occasion  decisive  of  great  issues, 
pervaded  the  Hellenic  cities  of  the  ancient  Mediterranean 
world  and  gave  to  the  history  of  the  Greeks  some  features 
of  homogeneity  and  concert.  A  common  Hellenic  character 
everywhere  distinguished  Greek  communities  from  all  others. 
But  their  inbred  political  habit  and  their  wide  geographical 
extension  effectually  barred,  sooner  or  later,  every  movement 
towards  national  governmental  union. 

123.  Religious  Community:  the  Delphic  Amphictyony. 
—  In  religion  more  than  in  anything  else  the  Greeks  made 
show,  of  union  and  gave  evidence  of  a  spirit  of  nationality. 
In  many  quarters  of  Hellas  cities  lying  round  about  some 
famous  shrine  of  Zeus,  Apollo,  Poseidon,  or  other  national 
deity,  came  together  into  an  Amphictyony,  or  League  of  Neigh- 
bors, for  the  purpose  of  worthily  maintaining  and  enriching  the 
worship  of  the  divinity  and  of  defending  his  shrines  against 
pollution  or  dishonor.  The  most  famous  and  influential  of 
these  associations  was  that  which  gathered  about  the  shrine 
of  Demeter  Amphictyonis  at  Thermopylae  and  the  temple  of 
Apollo  at  Delphi.    It  included,  at  one  time  or  another,  almost 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  81 

all  the  tribes,  small  as  well  as  great,  of  Central  Greece,  and  in 
its  later  development  admitted  to  membership  Dorian  states 
also  of  Peloponnesus.  Its  history  runs  back  beyond  the  be- 
ginnings of  authentic  tradition ;  but  it  is  probable  that  it  had 
at  one  time  considerable  political  influence.  Its  primary  pur- 
pose was  to  superintend  the  common  worship  of  Apollo,  to 
guard  the  oracle  at  Delphi  in  its  sacred  independence,  to  main- 
tain against  invasion  the  territory  round  about  the  shrine 
which  was  consecrated  to  the  uses  of  religion.  It  had  regular 
assemblies  composed  of  delegates  from  the  several  states  in 
the  league,  a  permanent  official  organization,  fixed  rules  of  pro- 
cedure, an  ancient  prestige. 

At  the  semi-annual  meetings  of  the  league,  held  spring  and  autumn 
both  at  Thermopylfe  and  at  Delphi,  vast  concourses  of  Greeks  swarmed 
from  all  parts  of  the  central  states  of  Hellas  to  take  part  in  the  festi- 
vals held  in  honor  of  the  god,  and  to  get  gain  out  of  the  opportunities 
for  trade  thereby  afforded. 

But  the  equal  voice  accorded  to  large  and  small  tribes  alike 
in  the  votes  of  the  Amphictyonic  Council  speedily  robbed  its 
conclusions  of  binding  force  in  even  the  international  politics 
of  the  states  concerned.  The  powerful  members  of  the  Am- 
phictyony  naturally  would  not  heed  the  dictation  of  its  insig- 
nificant members.  Eules  there  were  by  which  each  state  in 
the  league  was  bound  under  oath  not  to  destroy  any  Amphic- 
tyonic town,  not  to  turn  away  from  it  at  any  time  its  running 
waters,  to  join  heartily  in  every  duty  which  looked  to  the  pro- 
tection of  the  Delphic  temple,  and  in  other  respects  to  observe, 
at  least  within  the  limits  of  the  league,  humane  standards  of 
conduct  both  in  war  and  in  peace  and  faithful  standards  of  co- 
operation in  all  matters  touching  the  worship  of  the  divinity 
in  whose  name  the  association  was  formed.  There  were  germs 
in  the  constitution  of  the  Delphic  Amphictyony  on  the  one 
hand  of  national  unity,  and  on  the  other  of  international  com- 
ity and  morality.    But  these  germs  were  never  developed. 


82         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

The  disintegrating  forces  of  Greek  politics  were  too  strong  to 
be  stayed  by  the  forces  of  religion. 

The  Amphictyonic  bond  was  never,  perhaps,  a  close  one.  During  the 
central,  most  celebrated  period  of  Hellenic  history  the  influence  of  the 
league  utterly  disappears  from  politics;  and,  when  in  later  times  it 
again  emerges,  it  is  only  to  plunge  Greece  into  "  sacred  wars  "  which 
afford  Macedonia  her  opportunity  for  the  destruction  of  Greek  indepen- 
dence, and  in  the  conduct  of  which  almost  every  humane  and  religious 
purpose  of  tlie  Amphictyony  is  flagrantly  neglected. 

124.  The  Delphic  Oracle:  its  Influence. — None  the  less,  the 
oracle  at  Delphi,  whose  shrine  the  Amphictyony  had  been  organized 
to  protect  and  honor,  exercised  an  abiding  influence  upon  Greek  life 
throughout  the  length  and  breadth  of  Hellas.  Its  shrine  has  been 
called  "  the  common  hearth  of  Hellas,"  the  centre  towards  which  the 
faith  and  reverence  of  the  great  Greek  family  turned  as  towards  the 
home  of  their  religion,  the  symbol  of  their  oneness.  The  Romans  — 
even  the  Romans  of  the  time  of  the  Empire  —  consulted  the  oracle,  so 
great  was  its  fame  and  authority;  and  in  tlie  Greek  world  almost  every 
considerable  undertaking  awaited  its  sanction.  Its  responses  were  gen- 
erally, in  cases  of  difficulty  or  of  controversy  between  two  powerful 
states,  given  with  great  wisdom  and  circumspection.  Those  who  acted 
as  the  mouth-pieces  of  the  god  acquired  a  facility  and  felicity  in  the 
utterance  of  double,  as  well  as  of  sage,  meanings  which  saved  the  rep- 
utation of  the  oracle  in  all  cases  by  virtue  of  a  possible  twofold  inter- 
pretation of  its  response.  Though  the  influence  of  the  oraclo  waned, 
like  all  other  influences  of  tlie  older  religion,  in  the  later  periods  of 
Hellenic  history,  its  power  was  very  slow  indeed  to  disappear  altogether. 
Its  formative  authorit}'-  must  be  put  prominently  forward  in  any  esti- 
mate, however  slight,  of  the  nationalizing  forces  operative  in  the  history 
of  the  Greeks. 

125.  Political  Aggregation  :  Achaean  Supremacy.  —  Such 
political  coliesion  as  the  cities  of  Hellas  here  and  there  had 
was  giv^en  them,  not  by  community  of  religious  feeling,  but  by 
the  compelling  power  of  some  dominating  ruler  or  strong,  ag- 
gressive city  aristocracy.  The  story  of  the  Trojan  war  sup- 
plies us  with  a  type  of  the  only  sort  of  empire  that  Greek 
politics  were  ever  to  produce :  the  supremacy  of  one  city  over 
many  others.    Agamemnon,  king  of  Mycenae,  was  leader  of 


THE  GOVEIINMENTS  OF  GREECE  AND  ROME.  83 

the  Greeks  against  Troy  because  Mycenae  was  the  leading  state 
of  Greece.  Mycenae,  lying  inland  in  the  northwestern  portion 
of  the  great  peninsula  plain  of  Argolis,  and  Tiryns,  placed 
just  at  the  head  of  the  Argolic  Gulf,  were  the  seats  of  the 
dominant  forces  of  Greek  politics  in  that  antique  time.  Built, 
doubtless,  by  immigrants  direct  from  Phrygia,  they  neverthe- 
less figure  in  the  Homeric  songs  as  the  regnant  cities  among 
the  Achaeans  of  the  Peloponnesus.  So  controlling  is  the 
part  played  by  Achaeans  in  the  Trojan  expedition  that  Homer 
again  and  again  uses  '  Achaean '  as  synonymous  with  ^  Greek.' 
Tribes  from  every  quarter  of  the  central  Greek  lands  recog- 
nized the  king  of  Mycenae  as  their  natural  leader  :  for  Mycenae 
dominated  Sparta,  Argos,  Corinth,  and  every  other  Peloponne- 
sian  community,  and  these  Achaean  communities  of  Pelopon- 
nesus were  the  prevalent  powers  of  Greece. 

126.  Cretan  Power.  —  Of  a  like  pattern  was  the  supremacy  said  to 
have  been  established  in  Crete  by  the  mythical  king  and  law-giver, 
Minos.  At  some  time  in  that  heroic  period  to  whose  events  no  definite 
dates  can  be  assigned,  Minos,  ruler  of  Cnossus  in  Crete,  was  thought 
by  the  Greeks,  not  only  to  have  brought  within  his  power  many  of  the 
other  Hellenic  cities  of  the  island,  but  also  to  have  constructed  some- 
thing like  an  empire  out  of  the  numerous  island  states  of  the  southern 
^gean,  establishing  a  naval  force  which  swept  the  sea  of  pirates,  and 
giving  to  the  cities  under  his  sway  a  system  of  laws  which  was  a  proto- 
type of  the  later  and  more  famous  laws  of  Sparta. 

127.  The  Supremacy  of  Argos.  —  Later,  Argos  gained  a  like 
temporary  ascendency  in  the  Peloponnesus.  Under  Phidon,  a 
lineal  successor  of  the  Heraclidae,  and  therefore  a  rightful 
representative  of  Dorian  supremacy,  a  man  of  imperative  ini- 
tiative and  commanding  ability,  Argos  dominated  the  cities  of 
Argolis,  and  even  led  for  a  time  the  whole  of  the  Peloponne- 
sus. Phidon  used  his  power  to  substitute  Argos  for  Elis  in  the 
presidency,  for  a  single  occasion,  of  the  Olympian  games. 

128.  Games  and  Festivals  :  the  Hellenic  Spirit. —  To  pre- 
side at  Olympia  was  to  preside,  for  the  nonce,  over  all  Hellas : 


84         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

for  nowhere  did  the  pan-Hellenic  spirit  speak  with  so  plain  and 
so  impressive  a  voice  as  at  Olympia.  There  every  four  years 
Greeks  gathered  from  all  quarters  of  the  Hellenic  world  to 
hold  games  in  honor  of  Zeus,  their  national  deity.  AVith 
equal  frequency  the  Greek  world  sent  its  crowds  of  spectators, 
its  picked  athletes,  its  poets,  historians,  and  musicians  to  the 
great  Pythian  festivals,  in  honor  of  Apollo,  at  Delphi.  Every 
third  year  the  Ionian  Poseidon  was  celebrated  with  almost 
equal  splendor  in  the  Isthmian  games,  held  under  Corinth's 
presidency.  Zeus  had  his  famous  games  and  rites  every  third 
year  at  Nemea  also,  in  Argolis.  But  no  festivals  had  quite  the 
celebrity  and  influence  enjoyed  by  those  which  every  fifth  year 
witnessed  at  Olympia,  in  Elis.  The  Greeks  reckoned  time  by 
'  Olympiads,'  by  the  four-year  periods,  that  is,  which  elapsed 
between  festival  and  festival  at  Olympia.  To  win  a  prize  in 
the  Olympian  games  was  to  win  immortality.  Thither  poets 
went  to  publish  their  poems  to  all  who  would  listen.  Embas- 
sies came  from  every  Greek  city  of  consequence,  on  the  main- 
land of  Greece  at  any  rate,  to  take  solemn  part  in  the  ceremo- 
nies by  which  the  religious  motives  of  the  gathering  were  pro- 
claimed. Those  who  were  not  Greeks  could  be  present  as 
spectators ;  but  no  one  who  could  not  prove  himself  of  pure 
Hellenic  Mood  and  free  from  all  taint  of  sacrilegious  crime 
could  take  part  in  any  contest.  The  period  of  the  games  was 
made  a  period  of  peace,  of  truce :  war  stood  still  while  the 
Greeks  thus  gave  token  of  their  common  national  spirit,  of 
their  race  unity  in  religion  and  in  standards  of  achievement. 
It  is  scarcely  possible  to  exaggerate  the  influence,  both  polit- 
ical and  moral,  of  these  festivals.  The  persistency  and  enthu- 
siasm with  which  they  Avere  celebrated  throughout  fully  a  thou- 
sand years  gives  impressive  evidence  of  their  significance  in 
Greek  national  history. 

Still,  although  they  spoke  a  national  spirit,  they  did  not  se- 
cure political  unity.  Nothing  but  strength,  nothing  but  arms 
or  self-interest,  furnished  means  sufficient  for  even  those  tern- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  85 

porary,  ephemeral  unions  of  Greek  cities  which,  once  and  again 
seemed  for  a  moment  to  be  bringing  sections  at  least  of  the 
Hellenic  world  into  possession  of  better,  because  more  national, 
political  methods. 

129.  The  Delian  Confederacy. —  The  most  celebrated,  and 
in  its  early  days  most  promising,  of  the  combinations  by  means 
of  which  a  certain  degree  of  Hellenic  union  was  secured  was 
the  Delian  Confederacy.  In  resisting  the  Persian  invasions  of 
B.C.  490  and  480  the  cities  of  European  Greece  had  looked  to 
Sparta  as  their  leader.  But  the  two  campaigns  resulted  in 
bringing  Athens  forward  as  the  most  effectual  representative 
of  Greek  independence ;  and  the  turn  which  the  contest  with 
the  Persians  took  so  soon  as  Marathon,  Salamis,  and  Plataea 
had  thrust  the  invaders  out  of  Greece,  made  Athens  the  only 
possible  leader.  Immediately  after  these  victories  the  Hellenic 
states  of  the  ^gean  joined  the  states  of  the  mainland  in  fol- 
lowing up  the  military  advantages  already  gained  and  in  driv- 
ing the  Persians  back  from  Asiatic  as  well  as  from  European 
Hellas ;  and  in  this  movement,  as  in  the  earlier  defence  of  the 
peninsula,  Sparta  led.  But  Sparta  soon  found  that  such  lead- 
ership threatened  to  result  in  the  breeding  of  generals  whose 
personal  power  would  be  full  of  peril  to  her  aristocratic  con- 
stitution. She  was,  besides,  not  fitted,  either  by  position  or  by 
political  constitution,  to  play  the  j^art  of  a  naval  state :  and 
yet  it  must  be  a  naval  state  that  should  lead  the  ^gean  and 
Asiatic  communities  in  their  contest  with  the  common  enemy. 
Sparta,  therefore,  withdrew,  and  Athens  became  her  natural 
successor  in  the  hegemony. 

The  result  was  the  re-formation  of  the  league ;  or,  rather, 
the  formation  of  a  new  league.  This  league  was  the  Delian, 
formed  about  b.c.  475.  It  embraced  most  of  the  Ionian  states 
of  the  archipelago  and  of  the  Asiatic  coast.  Delos  was  chosen 
as  the  seat  of  its  treasury  and  the  meeting-place  of  its  assem- 
blies, not  only  because  of  its  convenient  central  location,  but 
also  because  it  possessed  one  of  the  most  ancient  and  revered 


86         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

shrikes  of  Apollo  and  could  therefore  furnish  for  the  league 
that  religious  background  which  was  indispensable  to  Greek 
thought  in  the  construction  of  confederacies.  About  the  shrine 
in  Delos  the  confederates  gathered  as  an  Amphictyony.  Or- 
ganization was  effected  under  the  wise  and  eminently  conserv- 
ative guidance  of  Aristides  :  and  that  organization  promised 
to  be  effectual.  The  league  had  a  treasury  filled  by  stated 
contributions  from  all  those  members  of  the  organization  who 
could  not  themselves  furnish  men  and  vessels  to  the  confed- 
erate fleet ;  that  treasury  was  administered  by  permanent  offi- 
cials {^Hellenotamioe)  trained  for  their  functions  in  Athens  ;  its 
assembly  met  statedly ;  it  maintained  a  great  fleet  constantly 
upon  the  seas :  in  all  respects  it  was  the  most  compact,  most 
energetic,  most  promising  political  combination  that  Hellas 
had  yet  seen. 

130.  Athenian  Empire. — But  the  confederate  features  of 
this  combination  speedily  disappeared.  From  the  first  Athens 
had  had,  not  the  presidency  only,  but  also  the  control,  of  the 
league.  Her  citizens  administered  its  treasury  ;  she  commanded 
the  confederate  fleet ;  both  in  material  power  and  in  political 
capacity  she  immeasurably  excelled  all  the  other  confederates. 
Many  of  the  confederate  states,  too,  played  into  her  hands. 
They  preferred  to  pay  money  into  the  treasury  rather  than  be 
at  the  trouble  of  supplying  men  and  ships  —  and  Athens  made 
no  objection  to  the  change.  Presently  she  transferred  the  funds 
to  her  own  coffers,  and  did  not  scruple  to  use  them  to  pay  for  the 
magnificent  buildings  and  the  matchless  works  of  art  with  which, 
Pericles  being  master  of  her  policy,  she  adorned  herself.  In 
every  way,  indeed,  the  money  of  the  confederacy  was  made  to 
simplify  Athenian  finance.  When  members  of  the  league  tried 
to  withdraw  from  it,  they  found  themselves  coerced  by  Athens 
into  remaining,  being  obliged  either  to  pay  a  heavy  tribute  for 
their  recalcitrancy  or  to  submit  to  be  ruled  direct  from  Athens. 
The  later  days  of  the  league  saw  Athenian  officers  of  oversight 
established  in  many  of  the  towns  once  equal  members  with 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  87 

Athens  in  the  confederacy,  and  in  some  Athenian  garrisons. 
When  necessary  or  expedient,  Athens  strengthened  her  control 
by  new  and  separate  treaties  with  the  stronger  towns  under 
her  hegemony.  The  Delian  Confederacy  had  become  an  Athe- 
nian Empire. 

It  was  the  resources  wrung  from  this  empire  that  rendered  the  finances 
of  Athens  so  easy  of  management  in  the  time  of  Pericles ;  and  it  was 
the  success  of  the  finances,  probably,  which  gained  for  his  policy  of 
making  money  payments  to  the  people  (sec,  90)  the  tolerance  of  the 
richer  classes  of  the  citizens,  and  prevented  the  fatal  consequences  of 
that  policy  from  making  themselves  at  once  manifest. 

131.  The  Peloponnesian  War:  Oligarchies  vs.  Democra- 
cies.—  This  empire  had  hardly  been  secured  when  Spartan 
jealousy  brought  about  its  downfall.  The  Peloponnesian  war 
was  fought  nominally  because  Athens  took  Corcyra's  part 
against  Corinth,  Corcyra's  parent  city,  but  really  because  the 
power  of  Athens  had  become  too  great  to  be  longer  brooked  by 
the  Peloponnesian  states.  Most  of  the  more  powerful  states 
of  the  Peloponnesus,  besides,  had  oligarchic  or  aristocratic 
constitutions,  and  Athens  was  the  representative  and  embodi- 
ment of  democracy.  That  Peloponnesus,  with  Sparta  at  its 
head,  should  strike  at  Athenian  supremacy  was  inevitable. 

The  result  of  the  war  was  to  make  Sparta  supreme.  But 
she  used  her  supremacy  to  humiliate,  not  to  unite,  Greece. 
She  put  garrisons  and  military  governors  (hannosts)  in  every 
city  convicted  or  suspected  of  disaffection  towards  her.  It 
was  impossible  that  ^gean  Hellas  should  long  be  held  together 
by  the  hateful  methods  of  her  drastic  tyranny.  Accordingly, 
Sparta  steadily  lost  her  ascendency. 

Athens,  on  the  other  hand,  gradually  recovered  much  of  tloB 
ground  she  had  lost ;  gathered  about  herself  a  new  and  more 
extensive  league,  including  not  only  many  of  her  old  allies,  but 
also  Dorian  and  Euboean  commonwealths  not  a  few,  and  even, 
for  a  time,  Macedonian  and  Thessalian  princes  ;  conducted  her- 


88         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


self  with  an  unwonted  moderation,  dictated  by  sad  experiences  ; 
and  liad  the  satisfaction  of  seeing  Peloponnesian  fleets  again 
and  again  driven  from  the  ^gean.  Sparta  was  forced  to  be 
content  to  be  the  chief  among  oligarchies  and  to  leave  the 
principal  rdle  in  Greece  to  democrats. 

132.  Meantime  Thebes  was  brought  to  a  sudden  and  short-lived  su- 
premacy by  the  genius  of  Epaminondas,  utterly  defeating  the  Spartans 
at  Leuctra  (b.c.  371)  not  only,  but  also  making  forcible  and  radical 
readjustments  in  the  politics  of  the  Peloponnesus. 

133.  Macedon.  — But  nothing  that  any  Greek  city  could  do 
proved  effectual  in  uniting  the  Greeks  :  confederacies  and  hege- 
monies alike  were  ephemeral.  It  remained  for  Macedon  and 
Rome  to  do  for  them  what  they  could  not  do  for  themselves. 
The  Macedonians  were  cousins  to  the  Greeks,  having  much 
Hellenic  blood  in  their  veins,  —  though  just  how  much  we  can- 
not say.  They  were  quite  near  enough  of  kin  to  understand 
Greek  character  and  politics  thoroughly,  and  to  make  their 
assumption  to  lead  Greece  seem  not  altogether  unnatural. 
Philip  of  Macedon  knew  his  object  perfectly,  easily  divined 
the  means  of  attaining  it,  and  advanced  towards  it  with  con- 
summate craft,  energy,  and  success.  Pirst,  he  conquered  the 
outlying  Greek  cities  nearest  to  his  hand ;  next  he  intervened 
in  a  "  sacred  war  "  —  a  war  among  the  Amphictyons  concerning 
Delphi  —  by  which  Greece  was  torn,  and  won  a  place  in  the 
Amphictyony  itself,  as  a  Greek  power  ;  and  then,  turning  to 
the  completion  of  his  designs,  he  crushed  Athens  (Chaeronea, 
338),  reduced  the  power  of  Sparta,  and,  establishing  himself 
in  the  presidency  of  the  Amphictyony,  brought  the  states  of 
European  Greece  together  into  a  nominal  league  which  was  in 
reality  a  Macedonian  empire.  Central  Greece  was  at  last  com- 
pacted for  a  national  undertaking,  —  the  Hellenization  of  the 
East. 

134.  The  Hellenization  of  the  East.  —  That  Hellenization 
followed  the  conquests  of  Alexander  the  Great.  Alexander 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  89 

moved  against  Persia  as  the  leader  and  representative,  because 
the  master,  of  the  European  Greeks.  His  armies  were  Greek, 
in  large  part  pure  Greek,  and  the  regions  which  he  conquered 
were  regions  opened  thereby  to  the  Greeks.  Alexander  him- 
self did  not  live  long  enough  to  do  much  more  for  the  perma- 
nent alteration  of  eastern  civilization  than  clear  away  obstacles 
to  the  spread  and  predominance  of  western  arts  and  ideas,  and 
create  the  highways  of  political  organization  upon  which  Greek 
influences  were  to  advance  into  Syria  and  Egypt.  The  great 
changes  which  were  to  make  the  East  Hellenic  took  place 
under  his  successors,  the  Diadochi,  amidst  the  wars  by  which 
they  sought  to  establish  upon  firm  foundations  their  series 
of  independent  Grseco-barbarian  kingdoms.  The  process  was 
easiest,  of  course,  in  Asia  Minor,  and  most  nearly  resulted 
there  in  a  veritable  Hellenization ;  but  even  in  Syria  and  Egypt 
it  made  notable  strides,  leaving  Greek  cities  like  Antioch  and 
Alexandria  to  attest  its  vigor,  and  subduing  to  Greek  influences 
much  important  Mediterranean  coast  country. 

135.  The  East  was  by  no  means,  however,  made  Greek  in 
any  such  sense  as  that  in  which  the  ^gean  coasts  of  Asia 
Minor  had  so  long  been  Greek.  The  Greeks,  though  they 
became  exceedingly  numerous  and  easily  dominant  in  the  new 
kingdoms,  did  not  anywhere,  probably,  constitute  a  majority 
of  the  population.  Nor  were  they  Greeks,  for  the  most  part, 
who  would  have  been  permitted  to  contend  in  the  games  at 
Olympia.  Macedon's  supremacy  and  eastern  conquests  had 
produced  a  new  Greek  race,  with  deep  infusions  of  Macedonian 
and  barbaric  elements  both  in  its  blood  and  in  its  manners. 
It  was  on  that  very  account  the  better  adapted  to  establish  a 
new  civilization,  which  knew  little  of  the  old  Greek  liberty  or 
variety,  —  an  orientalized  Greek  civilization.  It  was  not  stifiiy 
retentive  of  exclusive  characteristics,  like  the  pure  Hellenic ; 
it  was  receptive  of  outside  influences,  open  to  compromise,  sub- 
missive to  rulers. 

136.  The  Macedonian  kingdoms  amalgamated  the  East  and 


90         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


gave  it  that  individuality  which,  after  Roman  dominion  had 
spread  to  it,  was  to  enable  it  still  to  occupy  a  place  apart  in  the 
Roman  system,  and  was  to  cause  it  ultimately  to  emerge  from 
that  system  a  distinct,  separate,  self-suflB.cing  whole,  the  East- 
ern Empire  (sees.  186,  187). 

When  Constantine  transferred  the  capital  from  Rome  to  Byzantium, 
he  of  course  shifted  the  centre  of  gravity  from  the  Latin-Teutonic  to 
the  Greek  side  of  the  Empire.  In  the  time  of  Justinian  Greek  was  the 
prevaiUng  language  and  the  chief  imperial  officials  were  Greeks. 

137.  The  older  Greek  cities  of  the  ^gean  coast  of  Asia 
Minor  had  been  prepared  by  their  earlier  history  to  fall  easily 
into  a  system  like  that  established  by  Macedon.  Denying 
themselves  the  strength  that  lies  in  union,  they  had  singly 
succumbed,  first  to  semi-barbarian  Lydia,  and  afterwards  to 
wholly  barbarian  Persia.  It  was  no  new  thing  with  them,  as 
it  was  with  Athens  and  Thebes  and  Sparta,  to  become  material 
in  the  hands  of  a  conqueror,  constituent  parts  of  an  empire. 

138.  The  Achaean  League.  —  The  period  of  Macedonian 
supremacy,  period  though  it  was  of  the  final  decline  of  Greek 
liberty,  nevertheless  witnessed  one  of  the  most  brilliant 
attempts  at  national  action  on  the  part  of  the  Greeks.  The 
Achseans,  who  ever  since  that  heroic  age  of  the  Trojan  expe- 
dition when  they  had  been  leaders  of  all  Greece  (sec.  125)  had 
stood  in  the  background  of  Hellenic  history,  working  out  their 
own  quiet  developments  in  comparative  peace  and  prosperity 
in  secluded  Achaia,  now  again,  in  the  closing  age  of  Greek  his- 
tory, stepped  forward  to  a  new  leadership  and  initiative.  The 
cities  of  Achaia  had  from  time  immemorial  acted  together 
under  some  form  of  political  association  ;  but  their  union  did 
not  become  significant  in  the  history  of  Greek  politics  until 
the  year  b.c.  280.  In  that  and  the  previous  year  several 
Achsean  towns  took  heart  to  cast  out  their  Macedonian  mas- 
ters, and,  having  liberated  themselves,  drew  together  for 
mutual  assistance,  making  a  common  cause  of  their  liberty. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  91 

The  spirit  of  other  towns  kindled  at  the  example,  and  the 
movement  spread.  Presently  all  the  Achaean  towns  had  be- 
come free,  and  the  leagne  sprang  into  importance.  Sicyon, 
which  was  not  an  Achsean  town,  threw  in  her  lot  with  it  and 
gave  it,  in  the  person  of  her  own  gallant  Aratus,  a  leader  who 
was  speedily  to  make  it  famous  and  powerful.  Under  his 
leadership  it  became  instrumental  in  delivering  Corinth  and 
other  neighbors  from  their  tyrants.  Year  by  year  saw  fresh 
accessions  to  its  membership  till  it  included  Megara,  Troezen, 
Epidaurus,  Megalopolis,  and  even  Argos.  For  half  a  century 
it  served  as  an  admirable  organ  for  the  national  spirit  of  the 
Greeks  ;  for  a  full  century  it  retained  no  small  degree  of  credit ; 
but  finally,  of  course,  it  was  drawn,  like  all  else,  into  the  vor- 
tex of  Eoman  conquest.  It  may  be  said  to  have  been  the  last 
word  of  Greek  politics. 

139.  And  in  its  constitution  it  spoke  a  rather  notable  word 
for  the  politician.  That  constitution  brought  the  world  within 
sight,  perhaps,  of  a  workable  confederate  arrangement.  The 
league  acted  through  an  assembly  which  met  twice  every  year 
and  to  which  was  entrusted,  not  only  the  election  of  all  con- 
federate officials,  but  also  the  supreme  direction  of  every  affair 
which  affected  the  foreign  relations  of  any  city  in  the  league, 
even  though  it  were  an  affair  not  of  general  but  only  of  local 
interest.  The  business  of  the  assembly  was  prepared  by  a 
Council  (^ovXrJ,  houle)  which  was  probably  permanent.  Its 
officers  were,  at  first  two  Generals  (strategoi),  afterwards  one 
general  and  a  chief  of  cavalry  known  as  Hipparchus,  as  well 
as  certain  subordinate  general  officers;  a  Public  Secretary 
(ypa/x/xarevs,  grammateus)  j  and  a  permanent  executive  com- 
mittee of  ten  known  as  Demiurgi.  The  board  of  executive 
officers,  it  is  believed,  presided  over  the  sessions  of  the 
Assembly. 

Here,  certainly,  was  a  better  framework  than  the  Greeks 
had  ever  known  before  for  concerted  national  action.  Its 
chief  defects  lay  in  the  composition  and  procedure  of  the 


92         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

Assembly.  That  body  was  composed,  in  theory,  of  every 
freeman  of  the  cities  of  the  league  who  had  reached  the  age 
of  thirty  years.  In  fact,  of  course,  it  consisted  of  the  whole 
body  of  the  freemen  of  the  town  where  it  met  (usually  ^gium, 
or,  in  later  days,  Corinth)  and  of  such  citizens  of  the  other 
towns  as  had  the  leisure  or  the  means  to  attend.  The  ancient 
world  knew  nothing  of  the  device  of  representation  which  has 
solved  so  many  problems  of  political  organization  for  the 
Teuton.  And  the  votes  in  the  Assembly  were  taken  by  towns, 
not  decided  by  the  major  voice  of  the  freemen  present.  The 
few  chance  attendants  from  some  distant  city  within  the  league 
spoke  authoritatively  for  their  fellow-townsmen  :  the  smallest 
delegation  had  an  equal  vote  with  the  largest ;  and  yet  there 
was  no  fixed  plan  which  would  make  the  vote  of  one  delegation 
as  representative  as  that  of  another. 

140.  The  .^tolian  League.  — The  same  period  saw  another 
league  spring  into  rivalry  with  Macedonia  on  the  one  hand  and 
with  the  Achaean  towns  on  the  other,  whose  constitution  bears 
so  close  a  resemblance  to  that  of  the  Achaean  confederation  as 
to  suggest  the  prevalence  in  Greece  of  common  conceptions, 
or  at  least  of  common  habits,  of  political  association.  The 
^tolian  League,  like  the  Achaean,  had  its  general  assembly  of 
freemen;  the  business  of  that  assembly  was  prepared  by  a 
committee  whose  functions  resemble  those  of  the  Achaean 
Council ;  the  chief  executive  officer  of  the  league  was  a 
Strategus  ;  his  associate  in  command  was  dubbed  Hipparclius; 
and  a  Public  Secretary  (grammateus)  served  the  league  in  its 
formal  transactions. ' 

141.  But  these  likenesses  ought  not  to  be  too  much  insisted 
upon.  We  know  less  of  the  actual  confederate  life  of  the 
iEtolian  League  than  of  that  of  the  Achaean,  and  what  we  do 
know  reveals  certain  important  differences  between  the  two 
associations.  The  ^tolian  League  was  not  a  confederation  of 
cities,  but  a  confederation  of  tribes.  Nor  was  the  leadership 
which  the  ^tolians  acquired  through  their  league  like  the 


THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


93 


leadership  which  fell  to  the  Achaean  towns.  The  ^tolians 
inhabited  a  country  backed  by  impenetrable  mountain  fast- 
nesses to  which  they  could  retire,  to  the  defeat  of  all  outside 
coercion.  Their  aggressive  and  lawless  natures  led  them  to 
make  of  their  neighborhood  to  the  sea  an  opportunity  for  wide 
and  successful  piracy.  Their  power  and  their  energetic  initia- 
tive created  for  them  a  sort  of  empire :  at  one  time  all  of 
Southern  Epirus,  Western  Acarnania,  Thessaly,  Locris,  Phocis, 
and  Boeotia  were  included  in  the  league,  and  it  even  had  allies 
in  Asia  Minor  and  on  the  Propontis.  It  "  assumed  entire  con- 
trol of  the  Delphic  oracle  and  of  the  Amphictyonic  assembly.'^ 
Its  leadership  was  a  purely  military  leadership,  presenting 
salient  points  of  contrast  to  the  association  by  means  of  which 
the  Achaean  Confederates  sought  to  secure  themselves  in  the 
enjoyment  of  their  liberties. 

Every  freeman  of  thirty  years  of  age  was  entitled  to  membership  of 
the  Assembly  of  the  League.  That  assembly  met,  not  twice,  but  once 
a  year,  in  the  autumn,  at  Thermum,  and  was  attended,  of  course,  only 
by  those  who  could  afford  to  attend :  that  is,  by  the  dominant  few. 

The  Assembly  did  not  select  the  Strategus  of  the  League,  but  a  list  of 
nominees  for  the  office  —  from  which  a  Strategus  was  picked  out  by  lot. 

The  Strategus,  not  a  board  of  magistrates  as  in  Achaia,  presided  over 
the  meetings  of  the  Confederate  Assembly;  and  to  liim  were  entrusted, 
besides  his  military,  certain  general  civil  and  representative  functions. 

The  JEtolian,  like  the  Achaean  League,  was  eventually,  of  course, 
swept  into  the  Roman  vortex, 

142.  Rome  and  the  Western  Greeks.  —  Western  Hellas,  after 
having  been  at  some  points  touched  by  Carthage,  had  been  absorbed 
by  Rome,  of  course,  before  the  imperial  city  had  sent  her  armies  to  in- 
tervene in  the  factional  fights  of  Greece  proper.  The  cities  of  Magna 
Graecia  Rome  acquired  when  she  completed  her  conquest  of  the  Italian 
peninsula,  B.C.  272.  Sicily,  with  its  Greek  and  Carthaginian  settlements, 
she  acquired  in  B.C.  241,  and  organized  as  a  province  in  b.c.  227.  The 
other  western  homes  of  the  Greeks  she  made  her  own  along  with  Spain 
and  the  coasts  of  Gaul. 

143.  After  Roman  Conquest. — Eome  neither  undid  the 
work  of  the  Macedonian  princes  in  Asia  Minor  and  Syria,  nor 


94         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

thoroughly  Eomanized  there  the  systems  of  government.  The 
vitality  and  self-direction  of  the  semi-Greek  municipalities  of 
the  East  in  large  measure  weathered  Eoman  rule,  as  did  also 
the  Greek  speech  and  partially  Hellenized  life  of  Asia,  Syria, 
and  Egypt.  The  compound  of  oriental,  Greek,  and  Roman 
methods  in  government  which  was  effected  by  the  later  empe- 
rors, when  Greek  Byzantium  had  become  the  imperial  capital, 
Constantinople,  may  be  best  discussed  in  direct  connection  with 
Eoman  political  development  (sees.  181-187). 

The  Greek  settlements  of  Sicily,  Italy,  Gaul,  and  Spain  were 
much  more  completely  swallowed  and  assimilated  by  Eoman 
organization. 

(II.)  The  Government  of  Eome. 

144.  The  Ancient  Roman  Kingdom.  —  At  no  period  before 
that  of  the  Empire  was  the  government  of  Eome  radically 
unlike  the  governments  of  Greece ;  in  their  earliest  stages  the 
resemblance  between  Grecian  and  Eoman  governments  was  a 
resemblance  of  details  as  well  as  of  general  pattern.  Homer's 
account  of  the  patriarchal  presidencies  of  Greece  may  serve 
as  a  sufficiently  accurate  picture  of  the  primitive  Eoman  mon- 
archy. Kingship,  it  is  true,  seems  to  have  been  much  less 
strictly  hereditary  in  Eome  than  in  Greece :  the  Eoman  kings 
were  not  only  of  several  families,  but  even,  tradition  says,  of 
different  nationalities.  The  functions  of  the  Eoman  kings, 
however,  and  the  government  over  which  they  presided,  would 
have  seemed  most  natural  and  regular  to  a  contemporary  Greek 
observer.  The  king  was  high-priest  of  the  nation,  its  general, 
and  its  judge.  He  was  associated  with  a  council,.  —  a  Senate, 
—  composed  of  heads  of  families ;  for  the  Eoman  state,  like 
the  Greek,  was  a  confederation  of  gentes,  curies,  and  tribes ; 
and  the  decisions  of  king  and  council  were  heard  by  a  general 
assembly  (comitia)  of  the  freemen  of  the  curies.  There  is 
nothing  in  all  this  to  call  for  new  comment ;  we  have  seen  it 


THE  GOVERNMENTS  OF  GREECE  AND  R0:ME.  95 

all  in  Greece  (sees.  48-57), — except  the  method  of  succession 
to  the  throne.  Upon  the  death  of  a  king,  a  council  of  all  the 
Fathers  of  the  gentes  chose  an  interrex,  who  was  to  hold  office 
for  one  day ;  the  interrex  named  a  successor,  the  successor, 
taking  counsel  with  the  Fathers,  named  a  king ;  and  the  Comi- 
tia  confirmed  the  choice. 

145.  Leading  Peculiarity  of  Roman  Constitutional  Devel- 
opment. —  This  primitive  constitution  completed  its  resem- 
blance to  those  of  Greece,  by  beginning  very  early  to  fall  to 
pieces.  But  the  way  Eome  took  to  alter  her  institutions  was 
in  some  respects  peculiarly  Roman.  The  Romans  never  looked 
revolution  straight  in  the  face  and  acknowledged  it  to  be  revo- 
lution. They  pared  their  constitution  down,  or  grafted  upon 
it,  so  that  no  change  was  sudden,  but  all  alteration  apparently 
mere  normal  growth,  induced  by  thoughtful  husbandry,  and 
they  could  fancy  that  the  original  trunk  was  still  standing, 
full  of  its  first  sap.  No  one  was  ever  given  leave  to  reform 
the  constitution  like  a  Solon  or  a  Clisthenes.  Reforms,  how- 
ever, were  planted  in  the  seed  at  various  times  which  we  can 
distinguish  now  very  clearly  as  beginnings  of  sluggish  changes 
which  were  to  be  entirely  accomplished  only  in  the  fulness  of 
time. 

146.  Reforms  of  Servius. — Thus  a  change  such  as  Solon 
brought  about  in  Athens  was  prepared  in  Rome  by  the  mili- 
tary and  civil  policy  of  Servius  TuUius,  one  of  the  latest  and 
greatest  kings  of  the  ancient  city.  The  Roman  Senate  in  its 
youth  resembled  in  one  particular  the  English  House  of  Lords 
as  it  was  long  ago  (sec.  659)  :  it  consisted  of  such  leaders 
of  the  nation  as  were  summoned  by  the  king,  and  Servius 
stretched  his  prerogative  by  summoning  to  it  the  heads  of  cer- 
tain plebeian  families  of  consideration.  Here  was  a  notable 
breach  made  in  patrician  privilege ;  but  made  under  the  forms 
of  the  constitution  and  destined  to  bear  fruit  but  slowly. 
More  significant  was  the  organization  which  Servius,  still  act- 
ing within  constitutional  warrant,  this  time  as  commander-in- 


96         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


chief,  gave  to  the  army.  For  the  purposes  of  military  adminis- 
tration he  divided  the  people  into  five  property  classes,  to  each 
of  which  were  assigned  military  duties,  proportioned  to  the 
means  available  to  it  for  self-equipment  for  the  field;  and  the 
host  thus  made  up  and  classified  he  formed  into  an  Assembly 
of  Centuries  (Comitia  Centuriata).  This  assembly  was  simply 
the  army  in  council.  In  it  each  of  the  hundreds  {centuries) 
into  which  the  army  was  divided  had  one  vote.  All  matters 
of  foreign  policy  in  which  the  army  as  such  might  naturally 
be  most  interested  to  have  a  voice  were  submitted  to  this  Army 
Council.  Such  prerogatives  given  to  the  new  property  classes 
contained  promise  of  grave  constitutional  changes.  The  cen- 
turiate  assembly  outlasted  the  necessarily  temporary  army 
organization  for  whose  sake  it  had  been  devised,  came  to  be 
simply  a  body  representing  wealth  instead  of  birth,  and  gradu- 
ally absorbed  an  electoral  and  legislative  power  such  as  had 
never  been  dreamed  of  in  the  plans  of  Servius.  Of  this  we 
shall  see  something  later  (sees.  154-155). 

147.  The  Centuries.  —  The  classification  of  the  people  effected  by 
Servius  was  based  upon  a  census  of  property  which  reminds  of  the  polit- 
ical reforms  of  Solon  in  Athens  (sec.  73).  Like  Clisthenes,  however, 
Servius  added  a  new  division  into  tribes  (sec.  82),  and  his  property 
classes  were  not  four  but  five  in  number.  Every  one  who  was  subject 
to  military  service,  and  who  owned  not  less  than  two  jugera  (a  little 
more  than  an  acre)  of  land,  was  to  contribute  to  the  defence  of  the 
state  under  the  new  classification :  and  the  new  classes  were  to  be  dis- 
posed into  four  tribes.  The  first  class,  consisting  of  those  worth  100,000 
asses  ($2000),  was  to  contribute  eighty  centuries  of  footmen  and  eigh- 
teen centuries  of  horsemen  to  the  array ;  the  second,  third,  and  fourth 
classes,  representing  respectively  individual  properties  worth  75,000, 
60,000,  and  25,000  asses,  were  each  to  supply  twenty  centuries  of  in- 
fantry; and  the  fifth  class,  representing  a  census  of  11,000  asses,  was 
to  furnish  thirty.  One-half  of  the  centuries  of  footmen  supplied  by 
each  class  consisted  of  seniors,  men  from  forty-five  to  sixty ;  while  the 
other  centuries  were  made  up  of  men  of  from  seventeen  to  forty-five. 

In  the  Comitia  Centuriata  the  voting  was  done  by  centuries,  the  vote  of 
each  century  being  decided  upon  by  a  majority  vote  within  the  century. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


97 


Evidently  tlie  result  of  the  arrangement  taken  as  a  whole  was  to  give 
preponderance  in  the  conclusions  of  the  Comitia  to  wealth  and  age. 

There  were  added  to  these  centuries  of  the  classes  one  century 
drawn  from  those  who  were  shown  by  the  census  to  have  less  than 
11,000  asses;  and  four  centuries  of  musicians  and  workmen  drawn  from 
the  masses  not  reckoned  in  the  census  at  all.  The  total  number  of  cen- 
turies was,  therefore,  one  hundred  and  ninety-three. 

148.  Beginnings  of  the  Republic.  —  The  line  of  Eoman 
kings  came  to  an  end,  and  the  Republic  was  inaugurated  at 
almost  the  very  moment  when  Clisthenes  was  effecting  his 
popular  reforms  in  the  institutions  of  Athens.  But  it  ought 
to  be  kept  clearly  in  mind  that  a  republic  was  inaugurated  in 
Rome  in  509  B.C.,  not  in  an  Athenian  or  modern,  but  only  in 
a  Roman,  sense.  As  I  have  said,  the  Romans  never  made 
revolutions  out  of  hand;  they  only  grew  them,  from  very 
slowly  germinating  seed.  The  change  made  in  509  was  scarcely 
greater  than  was  the  change  effected  in  Athens  some  two  cen- 
turies earlier  by  substituting  annual  archons  for  life  archons. 
Two  Consuls,  to  be  chosen  annually  by  the  Comitia  Centuriata, 
were  substituted  for  the  kings,  who  had  grown  insolent  in  the 
person  of  Tarquin;  and  a  newly  created  high-priest,  dubbed 
Bex  Sacrorum,  received  the  religious  prerogatives  of  supplanted 
royalty  —  that  was  all.  The  regal  functions  quietly  passed  to 
the  joint  exercise  of  the  consuls,  and  the  right  of  electing  to 
the  chief  magistracy  passed  away  from  those  who  had  elected  the 
kings.  In  all  other  respects  the  constitution  kept  close  to  the 
lines  of  its  original  forms ;  only  the  Senate  receiving  increase 
of  power. 

149.  The  Senate.  —  The  Roman  Senate  is  singular  among 
bodies  of  its  own  kind  in  having  had  no  clearly  defined  prov- 
ince. From  the  time  when  consuls  were  first  chosen  till  the 
end  of  the  second  Punic  war  (b.c.  509-201)  it  was  virtually, 
so  far  as  the  conception  of  policy  went,  the  government  of 
Rome.  Its  counsels  determined  the  whole  action  of  the  state. 
But  not  by  any  very  tangible  legal  right.    It  remained  till  the 


98         THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


last  what  it  had  been  from  the  first,  —  only  a  consultative  body 
whose  advice  any  magistrate  might  ask,  but  whose  advice  no 
magistrate  was  bound  to  take  unless  he  chose.  It  was  asso- 
ciated with  the  consuls  as  it  had  been  with  the  kings, — to 
give  them  such  counsel  as  they  should  call  upon  it  to  give. 
Its  powers  were,  strictly  speaking,  only  the  residuum  of  powers 
not  delegated  by  law  or  fixed  custom  to  any  magistrate  or  body 
created  since  the  days  when  all  legislative  functions  had  be- 
longed to  the  Senate  as  of  course,  as  the  onh'  council  in  exist- 
ence. Until  the  comparatively  late  times  when  the  Senate  had 
been  corrupted  by  the  temptations  incident  to  the  administra- 
tion of  a  vast  empire,  and  had  proved  itself  as  incapable  as 
any  other  advisory  debating  club  of  managing  foreign  con- 
quests, it  had  many  distinct  advantages  over  any  other  authority 
that  might  have  felt  inclined  to  compete  with  it.  Magistrates 
held  their  offices  only  for  one  year,  and  were  generally  drawn 
from  the  classes  strongest  in  the  Senate ;  the  various  assem- 
blies of  the  people  (sees.  154,  155)  had  no  permanent  organi- 
zation, and  met  only  occasionally,  when  the  proper  magistrate 
saw  fit  to  summon  them ;  the  Senate  alone  had  continuous  life 
and  effective  readiness  for  action.  With  its  life-membership 
it  was  immortal ;  containing  the  first  statesmen,  lawyers,  and 
soldiers  of  the  state,  it  had  a  knowledge  of  affairs  and  tradi- 
tions of  authorit}',  of  achievement,  and  of  sustained  and  con- 
certed purpose  such  as  magistrates  avIio  held  their  offices  but 
for  a  twelvemonth,  and  meetings  of  the  people  which  came  to- 
gether but  for  a  day,  could  not  possibly  have.  It  was  compact, 
practised,  clear  of  aim,  resolved,  confident.  The  vagueness  of 
its  functions  was,  therefore,  an  advantage  rather  than  a  draAv- 
back  to  it.  It  undertook  every  task  that  others  seemed  dis- 
posed to  neglect ;  it  stretched  out  its  hand  and  appropriated 
every  function  that  was  lying  idle.  If  its  right  to  any  par- 
ticular function  was  seriously  challenged,  it  could  quietly  dis- 
claim it,  —  to  take  it  up  again  when  the  challenger  had  passed 
on.    The  consuls  and  other  magistrates  could  ignore  its  deter- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  99 

ininations  at  will  and  follow  their  own  independent  purposes 
or  the  wishes  of  the  popular  assemblies.  The  Senate  was  only 
their  servant,  to  speak  when  bidden.  But  the  Senate's  advice 
was  commonly  indispensable  ;  nowhere  else  were  such  coherent 
views  or  such  informed  purposes  to  be  found,  nowhere  else  so 
much  experience,  wealth,  influence.  It  was  too  serviceable  to 
be  decisively  quarrelled  with :  and  in  all  seasons  of  quiet  in 
home  affairs  it  accordingly  had  its  own  way  with  undisturbed 
regularity. 

150.  Composition  of  the  Senate.  —  The  number  of  senators  was, 
throughout  most  of  Roman  history,  limited  to  three  Imndred.  Their 
tenure  was  for  life,  provided  they  were  not  deprived  of  their  rank  by  tlie 
censor.  In  the  regal  period  they  were  chosen  by  tlie  king,  his  summons 
constituting  them  members  (sec.  146)  ;  and  when  consuls  succeeded  to 
the  kingly  functions,  they,  like  the  kings,  filled  vacancies  in  the  Senate. 
A  law  of  about  b.c.  351,  however,  gave  the  right  to  a  seat  in  the  Senate 
to  every  one  who  had  been  consul,  praetor,  or  curule-aedile ;  and  vacan- 
cies over  and  above  the  number  which  such  ex-officials  sufficed  to  fill, 
were  thereafter  filled  by  appointment  of  the  censor. 

151.  Roman  Conquests  and  their  Constitutional  Effects.  — 

While  the  Senate,  however,  was  thus  profiting  by  knowing  its 
own  mind  and  by  having  functions  too  indefinite  to  be  cur- 
tailed, the  conquests  of  the  Roman  armies,  which  the  Senate 
at  first  did  so  much  to  advance  by  supplying  both  wise  plans 
and  effective  leaders,  were  sweeping  together  an  empire  whose 
government  was  to  prove  an  impossible  task  even  for  the  Sen- 
ate, —  for  any  magistrate  or  assembly,  indeed,  known  to  the 
constitution  of  the  city-republic.  Rome  was  denied  the  exclu- 
sively municipal  life  for  which  her  forms  of  government  fitted 
her  and  which  was  permitted  to  Athens,  Sparta,  and  the  other 
cities  snugly  ensconced  in  their  little  valley  nests  among  the 
mountains  of  Greece.  She  had  no  pent-up  Attica  in  which  to 
live  a  separate  life.  There  were  rival  towns  all  about  her  on 
the  plains  of  Latium  and  beyond  the  Tiber  in  Etruria.  When 
they  had  been  brought  under  her  supremacy,  she  had  but 


100       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

gained  new  hostile  neighbors,  to  whom  her  territory  was  equally 
open.  She  seemed  compelled  for  the  sake  of  her  own  peace  to 
conquer  all  of  Italy.  Italy  subdued,  she  found  herself  sepa- 
rated by  only  a  narrow  strait  from  Sicily.  Drawn  into  that 
tempting  island  by  policy  and  ambition,  she  came  face  to  face 
with  the  power  of  Carthage.  In  subduing  Carthage  she  was 
led  to  occupy  Spain.  She  had  been  caught  in  a  tremendous 
drift  of  compelling  fortune.  Not  until  she  had  circled  the 
Mediterranean  with  her  conquests,  and  had  sent  her  armies 
deep  into  the  three  continents  that  touch  its  international 
waters,  did  she  pause  in  the  momentous  undertaking  of  bring- 
ing the  whole  world  to  the  feet  of  a  single  city.  And  her  con- 
stitutional life  itself  felt  every  stroke  of  these  conquests.  This 
constant  stress  of  war  was  of  the  deepest  consequence  to  her 
politics,  —  especially  in  enabling  the  plebeians  to  break  into 
the  pale  of  political  privilege  much  earlier  than  they  might 
otherwise  have  done  so. 

152.  The  Plebeians.  —  Strangely  enough,  it  is  not  easy  to 
say  just  who  the  plebeians  were.  Some  historians  believe  that 
they  were  a  non-citizen  class  such  as  we  have  seen  in  the 
metoeci  at  Athens  (sec.  93) ;  others  have  satisfied  themselves  that 
they  were  at  least  sub-citizens,  members  even  of  the  exclusive 
curies  which  contained  the  original  Eoman  gentes,  but  that  some- 
how they  were  not  themselves  within  the  patrician  gentes,  and, 
consequently,  not  of  the  classes  which  were  eligible  for  office. 
Possibly  neither  view  is  either  quite  right  or  quite  wrong. 
Whether  or  not  it  be  true  that  Kome,  because  seated  in  a  dis- 
trict which  was  neither  fertile  nor  healthful  enough  to  have 
been  chosen  for  any  other  purpose,  was  at  first  an  asylum  for 
the  outlawed  and  desperate  characters  of  Italy,  it  is  reason- 
ably certain  that  her  population  had  from  the  beginning  a  very 
miscellaneous,  heterogeneous  composition.  Possibly  the  gentes 
which  claimed  to  be  the  only  gentes  that  had  fathers  {patres,  in 
other  words,  long  and  honorable  descent),  and  consequently 
the  only  patricians,  were  themselves  of  rather  artificial  make- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  101 

up;  and  it  is  quite  conceivable  that  those  who  came  later  into 
the  Roman  circle,  although  not  less  naturally  but  only  more 
recently  formed  into  families  of  the  orthodox  pattern,  were 
relegated  to  a  rank  of  inferior  dignity  in  the  state,  even  if  not 
excluded  from  a  place  in  the  curies  alongside  of  the  patricians. 
But  there  were  also  many,  doubtless,  who  had  come  to  Rome 
as  aliens,  content  at  first  to  live  there  as  outsiders  for  the  sake 
of  certain  advantages  of  trade  to  be  had  only  on  the  banks  of 
the  Tiber,  and  who  had  in  time  given  birth  to  a  non-citizen 
class,  which  had  forgotten  its  alien  extraction  and  had  become 
identified  with  the  city,  but  which  had  made  no  advance  be- 
yond the  threshold  of  the  state.  Probably  these,  too,  were 
plebeians.  Doubtless  the  same  name  included  also  those  who, 
whether  sub-citizens  or  non-citizens,  had  attached  themselves  to 
noble  patrons  in  the  half-servile  capacity  of  clients. 

153.  Secession  of  the  Plebeians  (b.c.  494). — Whoever  the 
plebeians  may  have  been,  they  were  indispensable  to  Rome  in 
her  struggle  for  supremacy.  They  came  year  by  year  into  a 
greater  military  importance,  constituting  more  and  more  exclu- 
sively the  rank  and  file  of  the  Roman  armies :  and  they  em- 
ployed their  usefulness  to  the  state  as  a  lever  by  which  to  raise 
themselves  to  complete  political  equality  with  the  senatorial 
families.  Their  first  decisive  step  demonstrated  their  strength, 
—  to  themselves,  possibly,  as  well  as  to  the  patricians.  In  the 
midst  of  war,  and  with  their  arms  in  their  hands,  they  seceded 
from  the  city  and  threatened  to  establish  a  separate  govern- 
ment of  their  own.  Their  grievance  was,  that  they  were  at 
the  mercy  of  the  patrician  magistrates :  they  had  not  as  yet 
any  greater  demands  upon  which  to  insist  seriously  than  pro- 
tection against  magisterial  tyranny. 

154.  The  Tribunes.  —  They  were  heeded,  of  course.  A  seed 
of  revolution  was  sown,  as  usual,  without  any  one's  seeing  the 
promise  of  innovation  it  contained.  Tribunes  of  the  people 
were  appointed :  at  first  two,  afterwards  five,  in  the  last  days 
ten.    They  were  officers  chosen  from  the  ranks  of  the  plebeians 


'     102       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

and  invested  with  the  right  to  suspend  the  judgment  of  any 
magistrate  upon  a  plebeian  by  peremptory  veto.  The  persons 
of  the  tribunes  were  made  inviolable  by  a  compact  (the  lex  sa- 
cratd)  between  patricians  and  plebeians  which  denounced  a 
curse  upon  any  one  who  should  interfere  with  them  in  the  dis- 
charge of  their  functions.  The  concession  seemed  a  small  one, 
—  especially  in  view  of  the  fact  that  the  tribunes,  though  ple- 
beians, were  (till  b.c.  471)  elected,  not  by  their  own  order,  but 
by  the  Comitia  Curiata,  the  exclusive  assembly  of  the  patri- 
cian curies.  But  the  creation  of  the  tribunate  did,  neverthe- 
less, transform  the  constitution.  The  tribunes  did  not  content 
themselves  with  restraining  the  tyranny  of  the  magistrates  ; 
they  constituted  themselves  the  political  leaders  of  the  plebs ; 
they  called  plebeian  meetings  {condlia  pleMs)  which  they 
harangued,  and  which  they  prompted  to  take  concerted  action 
for  the  enforcement  of  plebeian  rights.  It  was  of  no  avail  that 
the  patricians  violently  broke  in  upon  and  dispersed  these 
meetings  and  handled  the  tribunes  roughly.  Plebeian  agitation 
extorted  a  law  (the  Icilian,  b.c.  493)  which  visited  with  the 
extreme  penalty  of  death  any  interruption  of  a  tribune  while 
addressing  the  people. 

155.  Progress  of  Plebeian  Predominance.  — In  b.c.  471  the 
election  of  tribunes  was  transferred  by  law  to  a  newly  consti- 
tuted plebeian  assembly  of  tribes,  which  was  known  as  the 
Concilium  tributum  plebis.  Step  by  step  the  resolutions  of  the 
strictly  popular  assemblies  grew  in  importance.  Ultimately  a 
Comitia  Tributa,  an  assembly  in  which  all  the  people,  whether 
patricians  or  plebeians,  participated,  became  the  chief  legisla- 
tive body  of  the  state;  the  initiative  of  the  tribunes  in  its 
counsels  grew  into  a  right  of  initiative  in  the  proceedings  of 
the  Senate,  their  authority  to  check  magistrates,  into  powers  of 
independent  judicial  action.  The  Comitia  Curiata  still  survived 
and  exercised  a  small  residuum  of  function,  —  for  the  Romans 
never  willingly  abolished  a  superseded  institution  ;  the  Comitia 
Centuriata  continued  to  elect  and  legislate  on  a  reduced  scale ; 


THE  GOVERNMEKTS  OF  GREECE  AND  ROME.  103 

and  the  Senate  still  got  its  administrative  suggestions  heeded 
when  it  could,  as  of  old ;  but  the  Comitia  Tributa  had  virtually 
absorbed  the  sovereignty.  It  was  the  assembly  of  the  whole 
people ;  the  others  were  weakened  houses  of  lords. 

156.  The  Plebeians  and  the  Magistracies.  — The  plebeians 
were  not  satisfied,  however,  with  a  grow^th  of  legislative  power 
and  the  intervention  of  the  tribunes  betw^een  themselves  and 
the  magistrates.  They  were  not  slow  to  use  their  waxing  po- 
litical strength  to  open  the  magistracies  to  their  order.  With 
a  true  instinct  for  strategy,  they  attacked  first  the  consulship 
itself ;  they  would  gain  all  by  gaining  that.  But  the  fight  was 
a  long  and  stubborn  one  about  this  stronghold ;  the  consulship 
was  the  key  to  the  constitution,  and  the  patricians  contrived 
to  delay  the  complete  triumph  of  the  plebeians  in  their  attack 
upon  it  for  a  century  and  a  half.  The  method  of  resistance 
which  they  adopted  was  at  once  astute,  bold,  and  successful. 
As  the  plebeians  approached  complete  possession  of  the  coveted 
office,  the  patricians  steadily  curtailed  its  importance  by  par- 
ing away  its  prerogatives  and  giving  them  to  officers  newly 
created  for  the  purpose  and  kept  carefully  within  the  patrician 
ranks.  At  the  beginning  of  the  contest,  when  it  first  became 
evident  that  the  plebeian  right  to  high  office  must  be  recog- 
nized, the  plebeians  were  offered  consular  powers  in  the  field 
under  the  title  of  'military  tribunes.'  The  tribunician  veto 
had  not  hitherto  been  able  to  protect  plebeians  outside  the 
city,  and  the  powers  w^hich  the  consuls  exercised  despoti- 
cally in  the  field  were  those  of  which  the  plebeians  were  most 
jealous.  Still  the  gift  of  a  share  in  these  extraordinary  powers 
under  a  new  title  did  not  satisfy  the  commons.  They  must  be 
admitted  to  the  consulship  itself,  with  its  dignities  and  its 
powers  both  in  the  field  and  at  home.  The  law  was,  therefore, 
made  to  concede  that  a  plebeian  might  be  one  of  the  consuls ; 
but  patrician  influence  and  intrigue  of  course  took  care  that 
none  should  be,  for  the  choice  was  made  by  the  Comitia  Cen- 
turiata ;  and,  for  fear  some  plebeian  might  somehow  creep  in, 


104       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

the  office  of  Quaestor  was  created,  and  the  consular  privilege 
of  acting  as  treasurer  of  the  state  was  given  into  the  hands 
of  two  patrician  quaestors.  The  plebeians  of  course  saw  that 
they  had  suffered  a  virtual  defeat,  and  pushed  on.  It  was  pres- 
ently enacted  that  one  of  the  consuls  must  be  a  plebeian ;  and 
the  law  was  carried  into  effect.  A  subsequent  law  threw  both 
consulships  open  to  the  commons.  But  both  times  the  patri- 
cians answered  by  cutting  off  a  piece  of  the  consular  power  and 
keeping  that  piece  still  safely  in  their  own  possession.  First, 
Censors  were  appointed  to  exercise  the  important  prerogative, 
hitherto  appertaining  to  the  consular  office,  of  taking  the  census 
and  revising  the  roll  of  the  Senate ;  and  then  Prmtors  were 
created  and  vested  with  the  judicial  functions  which  the  con- 
suls had  inherited  from  the  kings.  Both  these  offices  were 
denied  to  plebeian  candidates. 

*  Praetor '  was  the  original  title  of  the  officers  afterwards  called 
consuls.    It  was  now  revived  for  another  office. 

The  hierarchy  of  office  was  growing,  and  the  patricians  were 
maintaining  in  large  part  their  exclusive  hold  upon  power; 
but  the  most  that  the  privileged  classes  were  gaining  was  delay. 
Eventually  the  door  to  every  office,  even  to  the  sacred  priest- 
hoods and  to  the  augural  college,  swung  open  to  the  j^^ebs,  and 
the  old-time  hateful  inequality  between  patricians  and  plebeians 
was  swept  utterly  away. 

157.  Breakdown  of  the  Republic.  —  But  the  struggle  be- 
tween the  orders  was  scarcely  over  before  the  approaching 
decline  of  the  Eepublic  had  begun  to  become  manifest.  Kome 
had  been  attempting  the  impossible  task  of  administering  a 
vast  empire  by  means  of  a  city  constitution,  and  her  whole  po- 
litical system  was  breaking  down  under  the  strain.  As  province 
after  province  had  come  under  her  dominion,  she  had  invented 
no  new  system  whereby  to  give  them  good  government  and  at 
the  same  time  preserve  for  herself  secure  control.  The  Eomans 
never  invented  anything  new ;  they  simply  adapted  old  forms 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  105 

and  institutions  as  best  they  might  to  new  needs  and  circum- 
stances. They  had,  therefore,  merely  stretched  the  tentacles 
of  their  city  constitution  out  over  the  world,  and  that  consti- 
tution showed  yearly  clearer  and  clearer  signs  of  being  about 
to  be  torn  asunder  by  the  strain. 

158.  Provincial  Administration.  —  The  consuls  and  praetors 
of  the  city  government  were  continued,  as  pro-consuls  and 
pro-praetors,  and  sent  out  to  govern  provinces.  But,  once  away 
from  the  supervision  of  the  tribunes  and  the  criticism  of 
assemblies  and  Senate,  they  were  absolutely  irresi)onsible : 
save  only  that  they  were  liable  to  trial  for  malfeasance  in 
office,  after  the  expiration  of  their  terms  of  service,  by  jury- 
courts  at  Rome,  which  were  of  course  out  of  sympathy  with 
provincials  and  notoriously  open  to  be  bribed.  In  the  city 
itself  consul  and  praetor  were  theoretically  independent  of  the 
conclusions  of  Senate  or  people  ;  out  of  the  city,  commissioned 
as  pro-consuls  or  pro-praetors,  they  were  actually  independent. 
They  were  city  officers  far  away  from  home  and  from  all  city 
oversight,  among  subjects  instead  of  among  fellow-citizens. 
In  Eome  justice  was  administered  by  the  magistrate,  always 
subject  to  appeal  in  all  cases  which  were  not  in  the  first  in- 
stance heard  in  jury-courts,  and  well-known  law  governed  all 
decisions.  But  in  his  province  the  pro-magistrate  was  a  final 
judge  restrained  by  no  law  but  his  own  edict,  issued  on  enter- 
ing upon  his  provincial  command,  and  by  so  much  of  the  rules 
observed  by  his  predecessor  as  he  had  chosen  to  adopt  in  that 
edict.  And  so  throughout  provincial  administration.  There 
being  no  way  of  collecting  taxes  in  the  province  by  means 
of  any  stretched  municipal  instrumentality,  the  taxes  were 
farmed  out  to  publicans.  There  being  no  way  known  to 
Eoman  municipal  method  of  bringing  local  government  in  the 
pro\ances  into  any  sort  of  systematic  co-operation  with  the 
general  administration,  towns  and  districts  were  often  suffered 
to  retain  their  own  local  organization,  but  subject  to  the  con- 
stant harassment  of  Eoman  interference.     Force  cured  the 


106       THE  GOVERNIVIENTS  OF  GREECE  AND  ROME. 

want  of  system ;  arrogant  domination  served  instead  of  ade- 
quate machinery ;  a  genius  for  intrigue  and  for  open  subjuga- 
tion took  the  place  of  wise  legislation.  The  world  was  made 
use  of  rather  than  administered. 

159.  Causes  of  Failure.  —  This  attempt  to  make  a  city 
constitution  serve  for  the  government  of  a  whole  empire  failed, 
therefore,  for  the  double  reason  that  it  was  impossible  to 
provide  masters  for  the  magistrates  who  had  gone  out  nomi- 
nally as  servants  of  the  city  without  giving  the  provincials  a 
share  in  the  government,  and  impossible  to  give  the  provincials 
part  in  a  system  which  knew  nothing  of  representative  assem- 
blies, and  consequently  nothing  of  citizenship  save  in  the  shape 
of  privileges  which  could  be  exercised  only  in  Eome  itself. 
The  provinces  could  not  be  invited  to  Eome  to  vote  and  sit  in 
the  assemblies  and  the  jury-courts.  And  it  was  not  citizenship 
in  Eome  that  the  provincials  wanted,  but  Eoman  citizenship 
in  the  provinces,  if  such  a  thing  could  be  invented,  with  power 
to  curb  magistrates  and  condemn  publicans  on  the  spot. 

160.  Establishment  of  the  Empire. — The  only  remedy 
possible  to  the  ancient  world  was  to  overthrow  the  city  consti- 
tution and  bring  Eome  to  the  same  level  with  the  provinces 
by  giving  her  and  them  a  common  master  who  could  unify 
administration  and  oversee  it  with  an  equal  interest  in  the 
prosperity  of  all  parts  of  a  consolidated  domain.  That  is  what 
Caesar  attempted,  and  what  the  overthrow  of  the  Eepublic  and 
the  establishment  of  the  Empire  accomplished.  Under  the 
consuls  and  the  Senate  the  provinces  had  been  administered 
as  Eome's  property,  as  the  estate  of  the  Eoman  people ;  under 
the  emperors,  who  combined  in  their  single  persons  consular 
and  pro-consular,  preetorian  and  pro-praetorian,  tribunician  and 
qusestorian  powers,  the  provinces  very  soon  came  to  be  admin- 
istered as  integral  parts  of  Eome.  The  Senate  still  stood,  and 
many  provincial  officers  were  still  formally  elected  by  the 
people  of  the  city ;  but  the  city  became,  scarcely  less  than  the 
provinces,  bound  to  perfect  obedience  to  the  emperor ;  provin- 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  107 

cial  officers,  and  even  city  officers,  were  recognized  as  only  his 
deputies  ;  the  Empire  was  unified  and  provincials  brought  up 
to  an  equality  with  their  former  masters  by  a  servitude  com- 
mon to  all.  Caracalla's  act  of  universal  enfranchisement, 
whatever  its  immediate  purpose  (  a.d.  212),  was  a  logical 
outcome  of  the  imperial  system.  All  were  citizens  where  all 
were  subjects. 

Evolutions  of  Government  under  the  Empire. 

161.  Genesis  of  the  Empire.  —  It  is  not  possible  to  under- 
stand either  the  processes  or  the  significance  of  the  establish- 
ment of  the  Empire,  without  first  understanding  also  the  dis- 
cipline of  disorder  and  revolution  by  which  Eome  was  prepared 
for  the  change  from  republican  to  imperial  forms  of  gov- 
ernment. The  Empire  was  not  suddenly  erected.  The  slow 
and  stubborn  habit  of  the  Eoman,  degenerate  though  he 
had  become  by  reason  of  the  dissipations  of  conquest  and  the 
growth  of  military  spirit,  would  not  have  brooked  any  sudden 
change.  That  habit  yielded  only  to  influences  of  almost  one 
hundred  and  fifty  years  standing ;  the  changes  which  trans- 
muted the  Eepublic  into  the  Empire  began  with  the  agrarian 
legislation  of  Tiberius  Gracchus,  b.c.  133,  and  can  hardly 
be  said  to  have  been  completed  until  the  death  of  Augustus, 
A.D.  14. 

162.  Tiberius  Gracchus  to  Augustus.  —  The  first  stages  of 
the  change  which  was  to  produce  the  Empire  had,  indeed,  i^re- 
ceded  the  time  of  the  Gracchan  legislation.  The  strength  of 
the  Eepublic  had  lain  in  the  body  of  free,  well-to-do  citizens, 
in  a  race  of  free  peasants  as  well  as  of  patriotic  patricians,  in 
a  yeomanry  of  small  farmers  rather  than  in  a  nobility  of  great 
land-holders.  But  the  growth  of  the  Eoman  dominion  had 
radically  altered  all  the  conditions  of  Eome's  economic  life. 
She  had  not  only  spent  the  lives  of  her  yeomen  in  foreign 
wars,  but  had  also  allowed  them  to  be  displaced  at  home  by 


108       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

the  accumulation  of  vast  estates  iu  the  hands  of  the  rich  and 
by  the  introduction  of  slave  labor.  The  small  farm  was  swal- 
lowed up  in  the  great  estates  about  it ;  the  free  laborer  disap- 
peared in  the  presence  of  the  cheap  slaves  poured  in  upon 
Italy  as  the  human  spoils  of  foreign  conquest.  Presently  the 
cheap  and  abundant  grain  of  the  provinces,  too,  rendered  agri- 
culture unprofitable  in  Italy,  and  even  farming  on  a  vast  scale 
by  means  of  slave  labor  ceased:  the  great  estates  were  con- 
verted into  pastures  for  the  rearing  of  flocks  and  herds.  The 
pressure  of  these  changes  upon  the  peasant  classes  was  some- 
what relieved  from  time  to  time  by  the  establishment  of  colo- 
nies in  various  parts  of  Italy  upon  lands  acquired  by  the  state 
by  conquest ;  but  such  relief  was  only  temporary.  When  Car- 
thage was  finally  overthrown  and  the  greater  strains  of  war 
removed  from  Eome,  the  economic  ruin  of  the  home  state  be- 
came painfully  evident,  the  necessity  for  reform  painfully  press- 
ing. The  poor  who  were  also  free  had  no  means  of  subsist- 
ence :  all  the  lands  once  owned  by  the  state  were  in  the  hands 
of  the  rich,  and  with  the  rich  rested  all  the  substance  of  power, 
for  they  filled  the  Senate,  and  there  made  their  riches  tell  upon 
public  policy.  The  indispensable  economic  foundations  of 
republicanism  had  crumbled  utterly  away. 

163.  It  was  this  state  of  affairs  that  Tiberius  Gracchus 
essayed  to  remedy,  by  reviving  the  laws  (the  Licinian  of  B.C. 
366)  in  violation  of  which  the  rich  senatorial  families  had 
absorbed  the  public  lands.  By  enactments  which  he  proposed 
as  Tribune  in  133  b.c,  the  public  lands  illegally  occupied 
were  reclaimed  for  distribution  by  a  retroactive  enforcement 
of  the  old  limitations  as  to  the  amount  of  public  land  which 
each  person  should  be  allowed  to  hold,  and,  although  the  sena- 
torial party  accomplished  the  murder  of  Tiberius  and  the 
temporary  defeat  of  his  party,  his  measures  Avere  in  large  part 
put  into  operation,  in  deference  to  the  clamors  and  demands 
of  the  people.  Ten  years  later  Tiberius'  younger  brother, 
Gajus  Gracchus,  received  the  tribunate  and  vigorously  renewed 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  109 

the  same  policy.  He  forced  to  enactment  laws  providing  for 
the  sale  of  grain  at  low  prices  to  the  people,  for  the  establish- 
ment of  colonies  outside  of  Italy  in  the  provinces,  for  the 
admission  of  certain  classes  of  the  citizens  outside  the  Senate 
to  a  participation  in  the  judicial  functions  then  being  monopo- 
lized by  the  senatorial  oligarchs,  and  for  a  new  method  of 
bestowing  provincial  commands.  But  once  more  the  oligarchy 
crushed  its  enemies  and  regained  its  de  facto  ascendency  in 
the  state. 

164.  It  was  the  rule  of  the  oligarchy  which  produced  Marius 
and  Sulla  and  the  cruel  civil  wars  between  the  respective  par- 
ties of  these  rival  leaders.  Both  parties  alike  threw,  now  and 
again,  a  sop  to  the  commons,  but  neither  seriously  undertook 
any  reform  of  the  evils  which  were  sapping  the  state  of  every 
element  of  republicanism.  The  Italian  allies  went  into  revolt, 
and  forced  their  way  into  the  privileges  of  the  franchise ;  but 
intrigue  effected  their  real  defeat  in  the  struggle  for  substan- 
tial power,  and  their  success  did  not  touch  the  economic  con- 
dition of  Italy.  Sulla  was  able  to  carry  reactionary  legislation 
which  turned  the  constitution  back  in  some  respects  as  far  as 
the  times  of  Servius,  and  established  upon  a  basis  of  definite 
law  the  control  of  the  oligarchy.  The  extreme  policy  of  the 
oligarchs  produced  reaction ;  but  reaction  did  not  strengthen 
the  people ;  it  only  developed  factions  :  the  time  of  healthful 
reaction  had  passed,  and  the  period  of  destroying  civil  war  had 
come.  Civil  war  opened  the  doors  to  Caesar  and  the  several 
triumvirates,  and  finally  Bome  saw  her  first  emperor  in  Octa- 
vius.  The  stages  of  the  transformation  are  perfectly  plain: 
there  had  been  (1)  the  decay  of  the  free  peasantry  and  the 
transfer  of  economic  power  from  the  many  to  the  few ;  (2)  the 
consolidation  of  oligarchic  power  in  the  Senate ;  (3)  reactions 
and  factional  wars ;  (4)  the  interference  of  Caesar,  fresh  from 
great  successes  in  Gaul  and  backed  by  a  devoted  army ;  (5) 
the  formal  investiture  of  a  single  man  with  controlling  author- 
ity in  the  state.    Disorder  and  civil  war  had  become  chronic 


110  THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

111  tlie  degenerate  state,  and  had  been  cured  in  the  only  feasi- 
ble way. 

165.  Transmutation  of  Republican  into  Imperial  Institu- 
tions under  Augustus.  —  But  even  in  the  final  stage  of  the 
great  change  all  appearance  of  radical  alteration  in  time- 
honored  institutions  was  studiously  and  circumspectly  avoided. 
The  imperial  office  was  not  created  out  of  hand,  but  was  slowly 
pieced  together  out  of  rex^ublican  materials  ;  and  the  process 
of  its  creation  was  presided  over  by  Octavius,  the  best  possi- 
ble man  for  the  function,  a  man  who  was  at  once  a  consum- 
mate actor  and  a  consummate  statesman.  Of  course  there  was 
and  could  be  no  concealment  of  the  fact  that  predominance  in 
the  state  had  been  given  to  one  man ;  but  the  traditions  of  the 
republic  furnished  abundant  sanction  for  the  temporary  in- 
vestiture of  one  man  with  supreme  authority :  the  dictatorship 
had  been  a  quite  normal  office  in  the  days  of  the  Kepublic's 
best  vigor.  What  it  was  possible  and  prudent  to  conceal  was, 
that  one  man  had  become  permanent  master  and  that  republi- 
can institutions  had  been  finally  overthrown.  Even  the  time- 
honored  forms  of  the  dictatorship,  therefore,  were  avoided: 
the  dictatorship  was  an  office  raised  above  the  laws  and  ren- 
dered conspicuous  in  its  supremacy,  and  had,  moreover,  been 
rendered  hateful  by  Sulla.  All  that  was  desired  was  accom- 
plished by  the  use  of  regular  republican  forms.  The  frame- 
work of  the  old  constitution  was  left  standing ;  but  new  forces 
were  made  to  work  within  it. 

166.  In  the  year  43  b.c.  Octavius  had  formed  with  Antonius 
and  Lepidus  the  second  triumvirate  and  had  received  along 
with  these  colleagues,  by  decree  of  the  people,  supreme  au- 
thority in  that  capacit}'  for  a  period  of  five  years ;  at  the  end 
of  those  five  years  (b.c.  38)  the  powers  of  the  triumvirate 
were  renewed  for  another  term  of  the  same  length.  This 
second  period  of  the  triumvirate  witnessed  the  steady  advance 
of  Octavius  in  power  and  influence  at  the  expense  of  his  col- 
leagues.   His  own  powers  survived  the  expiration  of  the  five 


THE  GOVERmiENTS  OF  GREECE  AND  ROME.  Ill 

years  (b.c.  33).  In  b.c.  31,  exercising  the  military  im2yerium 
conferred  upon  him  in  32,  he  met  and  defeated  Antonius  at 
Actium,  pretending  to  meet  him,  not  as  a  rival,  but  as  a  leader 
of  the  revolted  East ;  and  after  Actium  he  was  supreme.  But 
he  still  made  no  open  show  of  any  power  outside  the  laws. 
The  years  28  and  29  b.c.  saw  him  consul,  with  his  close  friend 
Agrippa  as  colleague.  By  virtue  of  the  censorial  powers 
originally  belonging  to  the  consular  office,  and  now  specially 
conferred  upon  him,  he  effected  a  thorough  reformation  of  the 
Senate,  raising  the  property  qualification  of  its  members,  in- 
troducing into  it  fresh  material  from  the  provinces,  purging  it 
of  unworthy  members,  and  otherwise  preparing  it  as  an  instru- 
ment for  the  accomplishment  of  his  further  purposes.  In  b.c. 
28  he  formally  resigned  the  irregular  powers  which  he  had  re- 
tained since  33  by  virtue  of  his  membership  of  the  triumvirate, 
declaring  the  steps  which  he  had  meantime  taken  as  triumvir 
illegal,  and  pretended  to  be  about  to  retire  from  the  active  direc- 
tion of  affairs.  Then  it  was  that  the  process  began  Avhich  was 
to  put  the  substance  of  an  empire  into  the  forms  of  the  republic. 

167.  In  the  year  27  b.c.  he  suffered  himself  to  be  persuaded 
by  the  senators  to  retain  the  military  command  for  the  sake  of 
maintaining  order  and  authority  in  the  less  settled  provinces, 
and  over  these  provinces  he  assumed  a  very  absolute  control, 
appointing  for  the  administration  of  their  affairs  permanent 
governors  who  acted  as  his  lieutenants,  and  himself  keeping 
immediate  command  of  the  forces  quartered  in  them.  The 
other  provinces,  however,  remained  '  senatorial,^  their  affairs 
directed  by  the  Senate's  decrees,  their  pro-consuls  or  pro- 
prsetors  appointed  by  the  Senate,  as  of  old.  Avoiding  the  older 
titles,  which  might  excite  jealousy,  Octavius  consented  to  be 
called  by  the  new  title,  sufficiently  vague  in  its  suggestions,  of 
^Augustus.'  Presently,  in  23  b.c  and  the  years  immediately 
following,  he  was  successively  invested  with  tribunician,  with 
pro-consular,  and  with  consular  powers,  accepting  these  powers 
for  life.    In  19  b.c.  he  was  formally  entrusted  with  supervision 


112       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

of  the  laws,  and  in  12  B.C.  he  became  Pontifex  Maximus.  His 
powers  Avere  at  length  complete.  But  his  assumption  of  these 
powers  did  not  mean  that  the  old  republican  offices  had  been 
set  aside.  He  was  not  consul,  he  simply  had  consular  powers ; 
he  was  not  tribune,  but  only  the  possessor  of  tribunician 
powers.  Consuls,  tribunes,  and  all  other  officers  continued  to 
be  elected  by  the  usual  assemblies  as  always  before,  though,  in 
the  case  of  the  consuls,  with  shortened  terms,  —  the  emperor 
was  in  form  only  associated  with  them.  Above  all,  the  Senate 
still  stood,  the  centre  of  administration,  the  nominal  source  of 
law,  '  Augustus '  sitting  and  voting  in  it  like  any  other  senator, 
distinguished  from  the  rest  neither  in  position  nor  in  dress, 
demeaning  himself  like  a  man  among  his  equals.  In  reality, 
however,  he  was  of  course  dictator  of  every  step  of  importance, 
the  recognized  censor  upon  whose  will  the  composition  of  the 
Senate  depended,  the  patron  to  whose  favor  senators  looked 
for  the  employment  which  gave  them  honor  or  secured  them 
fortune.  Long  life  brought  Augustus  into  the  possession  of 
an  undisputed  supremacy  of  power,  in  the  exercise  of  which 
he  was  hampered  not  at  all  by  the  republican  forms  under 
which  he  forced  himself  to  act.  He  even  found  it  safe  at 
length  to  surround  himself  with  a  private  cabinet  of  advisers 
to  whom  was  entrusted  the  first  and  real  determination  of  all 
measures  whether  of  administration  or  of  legislation.  The 
transmutation  of  republican  into  imperial  institutions  had 
been  successfnlh'  effected;  subsequent  emperors  could  be  open 
and  even  wanton  in  their  exercise  of  authority. 

168.  Xo  nation  not  radically  deficient  in  a  sense  of  humor  could  have 
looked  upon  this  masquerade  with  perfect  gravity,  as  the  Romans  did. 
One  constantly  expects  in  reading  of  it  to  learn  of  its  having  been  sud- 
denly broken  up  by  a  burst  o-f  laughter. 

Of  course  it  must  be  remembered  how  welcome  the  order  secured  by 
the  new  regime  must  have  been  after  so  long  a  period  of  civil  strife  and 
anarchy  ;  and  that  the  men  of  courage  and  initiative  who  would  have 
organized  resistance  or  spoken  open  exposure  of  the  designs  of  Augus- 
tus had  perished  in  the  wars  and  proscriptions  of  previous  revolutions. 


THE  GOVERNMENTS  OP  GREECE  AND  ROME.  113 

The  state  wanted  rest  and  order  and  lacked  leaders  who  would  have 
resisted  the  purchase  of  order  or  rest  at  too  great  a  cost  to  liberty. 

Octavius  had,  moreover,  since  Actiuni,  been  at  the  head  of  about 
two  score  veteran  legions,  "conscious  of  their  strength,  and  of  the 
weakness  of  the  constitution,  habituated,  during  twenty  years  of  civil 
war,  to  every  act  of  blood  and  violence,  and  passionately  devoted  to 
the  house  of  Caesar."  i  It  might  have  been  dangerous  to  laugh  at  the 
farce. 

169.  The  Completed  Imperial  Power.  —  The  emperor,  thus 
created  as  it  were  a  multiple  magistrate  and  supreme  leader  in 
all  affairs  of  state,  though  nominally  clothed  with  man}'  dis- 
tinct powers,  in  reality  occupied  an  office  of  perfect  unity  of 
character.  He  was  the  state  personified.  No  function  either 
of  legislative  initiative  or  of  magisterial  supervision  and  direc- 
tion was  foreign  to  his  prerogatives  :  he  never  spoke  but  with 
authority ;  he  never  wished  but  with  power  to  execute.  The 
magistrates  put  into  the  old  offices  by  pojnilar  choice  were 
completely  dwarfed  in  their  routine  of  piece-meal  functions  by 
the  high-statured  perfection  of  his  power,  rounded  at  all  points 
and  entire.  Such  minor  powers  as  were  needed  to  complete 
the  symmetry  of  his  office  were  readily  granted  by  the  pliant 
Senate.  A  citizen  in  dress,  life,  and  bearing,  he  was  in  reality 
a  monarch  such  as  the  world  had  not  before  seen. 

170.  The  New  Law-making.  —  The  only  open  breach  with 
old  republican  method  was  effected  in  the  matter  of  legislation. 
Even  the  forms  of  popular  legislation  ceased  to  be  observed ; 
the  popular  assemblies  were  left  no  function  but  that  of  elec- 
tion ;  the  senate  became,  in  form  at  least,  the  single  and  su- 
preme law-making  authority  of  the  state.  The  senate  was, 
indeed,  the  creature  of  the  emperor,  senators  being  made  or 
unmade  at  his  pleasure ;  but  it  had  an  ancient  dignity  behind 
which  the  power  of  the  sovereign  took  convenient  shelter 
against  suspicion  of  open  revolution.  Its  supreme  decrees,  as 
Gibbon  says,  were  at  once  dictated  and  obeyed.    "  Henceforth 


1  Gibbon,  Chap.  III.  (Vol.  I.,  p.  36,  of  Harper's  edition,  1840). 


114       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


the  emperor  is  virtually  the  sole  source  of  law,  for  all  the 
authorities  quoted  in  the  courts  are  embodiments  of  his  will. 
As  magistrate  he  issues  edicts  in  accordance  with  the  old  usage 
in  connection  with  the  higher  offices  which  he  held,  as  did  the 
praetors  of  the  earlier  days.  When  sitting  judicially  he  gave 
decrees;  he  sent  mandates  to  his  OAvn  officials,  and  rescripts 
were  consulted  by  them.  He  named  the  authorized  jurists 
whose  responses  had  weight  in  the  nice  points  of  law.  Above 
all  he  guided  the  decisions  of  the  Senate  whose  Senatus  con- 
sulta  took  the  place  of  the  forms  of  the  republican  legisla- 
tion." ^ 

The  elective  prerogatives  of  the  popular  assemblies  survived  only 
the  first  imperial  reign.  During  the  reign  of  Tiberius  the  right  to  elect 
ofiicers  followed  the  legislative  power,  passing  from  the  assemblies  to 
the  Senate. 

Singularly  enough  the  diminished  offices  still  open  to  election  were 
much  sought  after  as  honors.  Though  filled  for  the  most  part  with 
candidates  named  by  the  emperor,  they  solaced  the  civic  ambitions  of 
many  a  patrician. 

171.  Judicial  Powers  of  the  Senate.  —  What  principally 
contributed  to  maintain  the  dignity  and  imj^ortance  of  the 
senate  in  the  early  days  of  the  Empire  was  its  function  as 
a  court  of  justice.  In  the  performance  of  this  function  it 
was  still  vouchsafed  much  independence.  Some  belated  tra- 
ditions of  that  ancient  eloquence  which  the  Senate  of  the 
Kepublic  had  known  and  delighted  in,  but  which  could  live 
only  in  the  atmosphere  of  real  liberty,  still  made  themselves 
felt  in  the  debate  of  the  great  cases  pleaded  in  the  patrician 
chamber. 

172.  Growth  of  New  Offices.  — As  the  imperial  office  grew 
and  the  constitution  accommodated  itself  to  that  growth,  a  nev»^ 
official  organization  sprang  up  round  about  it.  Praefects  {prce- 
fecti)  there  had  been  in  the  earlier  days,  deputies  commissioned 

1  The  Early  Empire  (Epochs  of  Ancient  History  series),  by  W.  W. 
Capes,  p.  181. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME,  115 

to  perform  some  special  magisterial  function ;  but  now  there 
came  into  existence  a  permanent  office  of  Prsef  ect  of  the  City,  and 
the  incumbent  of  the  office  was  nothing  less  tlian  the  Emperor's 
vice-regent  in  his  absence.  Praetorian  cohorts  were  organized, 
under  their  own  Praefect,  as  the  Emperor's  special  body-guard. 
The  city,  too,  was  given  a  standing  force  of  imperial  police. 
Procurators  (proctors),  official  stewards  of  the  Emperor's  privy 
purse  both  at  home  and  in  the  provinces,  at  first  well  regulated 
subordinates,  came  presently  into  very  sinister  prominence. 
And  the  Privy  Council  of  the  monarch  more  and  more  absorbed 
directive  authority,  preparing  the  decrees  which  were  to  go 
forth  in  the  name  of  the  Senate. 

173.  The  Provinces.  —  But  it  was  the  provinces  that  gave  to 
the  Empire  a  life  and  a  new  organization  all  its  own.  If  the  Ee- 
public  had  proved  a  failure  in  Kome  because  of  economic  decay, 
and  the  too  great  strains  of  empire,  how  much  greater  had  its 
failure  been  for  the  provinces  !  Xo  one  had  so  much  reason 
to  welcome  the  establishment  of  the  imperial  government  as 
had  the  provincials  ;  and  none  so  well  realized  that  there  was 
cause  for  rejoicing  in  the  event.  The  officials  who  had  ruled 
the  provinces  in  the  name  of  the  Eepublic  had  misgoverned, 
fleeced,  ruined  them  at  pleasure,  and  without  responsibility; 
for  the  city  democracy  was  a  multitudinous  monarch  without 
capability  for  vigilance.  But  with  a  single  and  permanent 
master  at  the  seat  of  government  the  situation  was  very 
different.  His  financial  interests  were  identified  with  the 
prosperity  of  the  provinces  not  only,  but  also  with  the  pecuni- 
ary honesty  and  administrative  fidelity  of  the  imperial  officers 
throughout  the  Empire ;  with  him  it  was  success  to  keep  his 
subordinates  in  discipline,  failure  to  lose  his  grip  upon  them. 
That  province  esteemed  itself  fortunate,  therefore,  which 
passed  from  senatorial  control  and  became  an  imperial  prov- 
ince, directly  under  the  sovereign's  eye  (sec.  167)  ;  but  even 
in  the  senatorial  provinces  the  emperor's  will  worked  for 
order,  subordination,  discipline,  for  regular,  rigid  control. 


116       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

Under  the  emperors,  moreover,  the  Senate  gained  a  new 
interest  in  the  provinces,  for  its  membership  became  largely- 
provincial.  The  notables  of  the  provinces,  men  of  prominent 
station,  either  for  wealth  or  for  political  service,  in  the  prov- 
inces, gained  admission  to  the  Senate.  There  were  at  last 
champions  of  the  provinces  within  the  government,  as  well  as 
imperial  officials  everywhere  acting  as  the  eye  of  the  Emperor 
to  search  out  maladministration,  and  as  his  mouth-pieces  to 
speak  his  guiding  will  in  all  things. 

174.  The  Empire  overshadows  Rome.  —  In  another  and 
even  more  notable  respect,  also,  the  provinces  were  a  decisive 
make-weight  in  the  scale  of  government  after  the  establish- 
ment of  the  Empire.  The  first  five  emperors  (Augustus  to 
Nero)  figured  as  of  the  Julian  line,  the  line  of  Caesar,  and 
under  them  the  Empire  was  first  of  all  Roman,  —  was  Rome's ; 
but  for  their  successors,  Eome,  though  the  capital,  was  no 
longer  the  embodiment  of  the  Empire.  The  levelling  of  Rome 
with  the  provinces  began,  indeed,  with  Augustus ;  both  the 
personal  and  the  municipal  privileges  hitherto  confined  for 
the  most  part  to  the  capital  city  and  its  people  were  more  and 
more  widely  and  liberally  extended  to  the  towns  and  inhabi- 
tants of  the  provinces.  Gradually  the  provinces  loomed  up 
for  what  they  were,  by  far  the  greatest  and  most  important 
part  of  the  Empire,  and  the  emperors  began  habitually  to  see 
their  dominion  as  a  whole.  Under  the  successors  of  the  Julian 
emperors  this  process  was  much  accelerated.  Presently  Trajan, 
a  Roman  citizen  born,  not  in  Italy,  but  in  Spain,  ascended  the 
throne.  Hadrian  also  came  from  a  family  long  settled  in 
Spain ;  so,  too,  did  Marcus  Aurelius.  Under  such  men  the  just 
balance  of  the  Empire  was  established ;  the  spell  was  broken ; 
the  emperors  ruled  from  Rome,  but  not  for  Rome  :  the  Empire 
had  dwarfed  the  city. 

175.  Nationality  of  the  Later  Emperors.  —  The  later  emperors, 
introduced  during  the  reyiine  of  military  revolution,  were  some  of  them 
not  even  of  Roman  blood.    Elagabalus  was  a  sun-priest  from  Syria; 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  117 


Maximin  was  a  Thracian  peasant ;  Diocletian,  with  whom  the  period  of 
military  revolution  may  be  said  to  have  closed,  and  who  was  the  reorgan- 
izer  of  the  Empire,  was  born  of  a  humble  Dalmatian  family.  Hence- 
forth Latin  blood  was  to  tell  for  little  or  nothing.  The  centre  of 
gravity  had  shifted  away  from  Rome.  After  the  second  century  even 
the  Latin  language  fell  into  decay,  and  Greek  became  the  language  of 
universal  acceptance  and  of  elegant  use. 

176.  The  Army.  —  The  elevation  of  the  provinces  to  their 
proper  status  within  the  Empire  meant,  however,  most  unhap- 
pily, the  elevation  of  the  provincial  armies  to  political  promi- 
nence. Very  early  in  the  history  of  Eome's  conquests  her 
armies -had  come  to  be  made  up  largely  of  provincial  levies, 
and  as  the  Empire  grew,  the  armies  by  which  it  was  at  once 
extended  and  held  together,  became  less  and  less  Roman  in 
blood,  though  they  remained  always  Roman  in  discipline,  and 
long  remained  Roman  in  spirit.  Gauls,  Germans,  Scythians, 
men  from  almost  every  barbarian  people  with  which  Rome  had 
come  in  contact,  pressed  or  were  forced  into  the  Roman  ser- 
vice. And  by  the  time  the  last  days  of  the  Republic  had  come, 
the  government  trembled  in  the  presence  of  the  vast  armies 
which  it  had  created.  Augustus  studiously  cultivated  the 
indispensable  good-will  of  his  legions.  It  was  the  praetorian 
guard  that  chose  Claudius  to  be  Emperor.  Very  early  the 
principle  was  accepted  that  the  Emperor  was  elected  "  by  the 
authority  of  the  Senate,  ayid  the  consent  of  the  soldiers."  Galba, 
Otho,  and  Vitellius  were  the  creatures  of  the  military  mob  in 
Rome.  Even  the  great  Flavian  emperors  came  to  the  throne 
upon  the  nomination  and  support  of  their  legions.  And  then, 
when  the  best  days  of  the  Empire  were  past,  there  came  that 
dreary  period  of  a  hundred  years,  and  more  than  a  score  of 
emperors,  which  was  made  so  hideous  by  the  ceaseless  contests 
of  the  provincial  armies,  as  to  which  should  be  permitted  to 
put  its  favorite  into  the  seat  of  the  Caesars. 

177.  Changes  in  the  System  of  Government.  —  It  was  in 
part  the  violence  of  this  disease  of  the  body  politic  that  sug- 


118       THE  GOVERNJUENTS  OF  GREECE  AND  ROME. 

gested  to  the  stronger  emperors  those  changes  of  government 
which  made  the  Empire  of  Constantine  so  different  from  the 
Empire  of  Augustus,  and  which  exhibited  the  operation  of 
forces  which  were  to  bring  the  government  very  near  to  mod- 
ern patterns  of  absolute  monarchical  rule.  But  before  military 
revolutions  had  compelled  radical  alterations  of  structure  in 
the  government,  the  slow  developments  of  the  earlier  periods 
of  the  Empire  had  created  a  civil  service  quite  unlike  that 
which  had  served  the  purposes  of  the  Republic.  Noble  Eomans 
had  time  out  of  mind  been  assisted  in  the  administration  of 
their  extensive  private  estates  and  their  large  domestic  estab- 
lishments by  a  numerous  staff  of  educated  slaves ;  and  it  was 
such  a  domestic  and  private  machinery  which  the  first  em- 
perors employed  to  assist  them  in  public  affairs.  One  domestic 
served  as  treasurer,  another  as  secretary,  a  third  as  clerk  of 
petitions,  a  fourth  as  chamberlain.  It  required  many  a  decade 
of  slow  change  to  reveal  to  the  eye  of  the  free  Eoman  that  any 
honor  lay  in  this  close  personal  service  of  a  sovereign  master. 
The  free  Eoman  of  the  days  of  the  Eepublic  had  served  the 
state  with  alacrity  and  pride,  but  would  have  esteemed  the 
service  of  any  individual  degrading  :  domestic  association  with 
and  dependence  upon  a  leader,  even  upon  a  military  leader,  had 
never  seemed  to  him,  as  it  did  seem  to  the  free  Teuton  (sees. 
226-228),  compatible  with  honor;  much  less  could  it  seem  'to 
him  a  source  of  distinction.  But  the  ministerial  offices  cluster- 
ing about  the  throne  and  by  degrees  associated  with  great  in- 
fluence and  power  at  last  came  to  attract  all  ambitions.  Erom 
the  first,  too,  patricians  had  stood  close  about  the  person  of  the 
Emperor  as  his  privy  councillors.  These  councillors  became 
the  central  figures  of  the  monarch's  court:  they  were  his 
'  companions '  (his  comites,  the  word  from  which  w^e  get  the 
modern  title  count).  The  later  day  when  all  service  of  the 
Emperor  had  become  honorable  to  free  men  saw  the  name  of 
comites  transferred  to  the  chief  permanent  functionaries  of  the 
imperial  service. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  119 


The  domestic  ministerial  service  of  the  early  Empire  was  of  course 
the  same  in  germ  as  that  organization  of  stewards,  chamberlains,  but- 
lers, and  the  rest  to  be  found  in  the  courts  of  mediaeval  Europe,  out  of 
which  our  modern  ministries  and  cabinets  liave  been  evolved.  It  was 
to  come  very  near  to  its  modern  development,  as  we  shall  see,  under 
Constantine  (sec.  184). 

178.  Of  course,  as  the  imperial  system  grew,  offices  multi- 
plied iu  the  provinces  also.  Provincial  governors  had  at  first 
little  more  than  functions  of  presidency  and  superintendence. 
Local  autonomy  was  by  the  wiser  emperors  for  a  long  time 
very  liberally  encouraged.  The  towns  of  the  provinces  were 
left  to  their  own  governments,  and  local  customs  were  suffered 
to  retain  their  potency.  But  steadily  the  imperial  system  grew, 
by  interference,  sometimes  volunteered,  sometimes  invited. 
The  usual  itching  activity  took  possession  of  the  all-powerful 
bureaucracy  which  centralized  government  created  and  fostered. 
Provincial  governors  were  before  very  long  surrounded  by  a 
numerous  staff  of  ministers ;  a  great  judicial  system  sprang  up 
about  them,  presided  over  often  by  distinguished  jurists :  Roman 
law  penetrated,  with  Roman  jurisdiction  and  interference,  into 
almost  every  affair  both  of  public  and  of  private  concern.  Cen- 
tralization was  not  long  in  breeding  its  necessary,  its  legitimate, 
hierarchy.  The  final  fruit  of  the  development  was  a  civil  ser- 
vice, an  official  caste,  constituted  and  directed  from  the  capital 
and  regulated  by  a  semi-military  discipline. 

179.  Constitutional  Measures  of  Diocletian. — The  period 
of  revolution  and  transition,  the  period  which  witnessed  the 
mutinous  ascendency  of  the  half-barbaric  soldiery  of  the  prov- 
inces, lasted  from  the  year  180  to  the  year  28-4.  In  the  latter 
year  Diocletian  ascended  the  throne,  and  presently  exliibited 
in  the  changes  which  he  introduced  the  constitutional  altera- 
tions made  necessary  by  that  hundred  years  of  fiery  trial.  All 
the  old  foundations  of  the  constitution  had  disappeared :  there 
was  no  longer  any  distinction  between  Romans  and  barbarians 
within  the  Empire :  the  Empire,  indeed,  was  more  barbarian 


120       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

than  Komaii :  tlie  mixed  provincial  armies  had  broken  down 
all  walls  of  x^artition  between  nationalities.  Witli  the  acces- 
sion of  Diocletian  the  Empire  emerges  in  its  new  character  of 
a  pure  military  despotism.  The  Senate  and  all  the  old  repub- 
lican offices  have  disappeared,  except  as  shows  and  shadows, 
contributing  to  the  pageantry,  but  not  to  the  machinery  of  the 
government.  The  government  assumes  a  new  vigor,  but  dis- 
penses with  every  old-time  sanction.  The  imperial  rule,  freed 
from  old  forms,  has  become  a  matter  of  discipline  and  organi- 
zation merely. 

180.  The  measures  of  Diocletian  were  experimental,  but 
they  furnished  a  foundation  for  what  came  afterwards  from 
the  hand  of  Constantine.  Diocletian  sought  to  secure  order 
and  imperial  authority  by  dividing  the  command  of  the  Em- 
pire under  chiefs  practically  independent  of  each  other  and  of 
him,  though  acting  nominally  under  his  headship.  He  asso- 
ciated ^laximian  with  himself  as  co-regent,  co- Augustus,  with 
a  separate  court  at  Mediolanum  (Milan),  thence  to  rule  Italy 
and  Africa.  His  own  court  he  set  up  at  Nicomedia  in  Bithy- 
nia,  and  he  retained  for  himself  the  government  of  the  East, 
as  well  as  the  general  overlordship  as  chief  or  senior  ^  Augus- 
tus.' The  frontier  provinces  of  Gaul,  Britain,  and  Spain  he 
entrusted  to  the  government  of  a  *  Caesar/  for  whom  Augusta 
Trevirorum  (Trier)  in  Gaul  served  as  a  capital ;  the  control 
and  defence  of  Illyricum  to  another  '  Caesar,'  who  held  court 
at  Sirmium.  The  two  'Caesars'  served  as  assistants,  and 
posed  as  presumptive  successors,  of  the  two  '  Augusti,'  ruling 
the  more  difficult  provinces,  as  younger  and  more  active  instru- 
ments of  government.  Each  Augustus  and  each  Cassar  exer- 
cised supreme  military  and  civil  authority  in  his  own  division 
of  the  Empire,  though  each  formally  acknowledged  Diocletian 
head  over  all. 

This  system  marks  the  abandonment  of  Rome  as  a  capital  and  the 
recognition  of  a  certain  natural  division  between  the  eastern  and  the 
western  halves  of  the  Empire. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  121 

181.  Reforms  of  Constantine.  —  This  division  of  authority, 
of  course,  brought  about,  after  the  retirement  of  Diocletian,  a 
struggle  for  supremacy  between  many  rivals  :  that  struggle 
issued,  fortunately,  in  the  undisputed  ascendency  of  Constan- 
tine, a  man  able  to  reorganize  the  Empire.  The  first  purpose 
of  the  new  Emperor,  indeed,  was  to  recast  the  system  alto- 
gether. He  meant  to  divide  administrative  authority  upon  a 
very  different  plan,  which  should  give  him,  not  rivals,  but  ser- 
vants. His  first  care  was  to  separate  civil  from  military  com- 
mand, and  by  thus  splitting  power  control  it.  There  was 
henceforth  to  be  no  all-inclusive  jurisdiction  save  his  own. 
For  the  purposes  of  civil  administration  he  kept  the  fourfold 
division  of  the  territory  of  the  Empire  suggested  by  the  ar- 
rangements of  Diocletian,  placing  over  each  '  prefecture '  (for 
such  was  the  name  given  to  each  of  the  four  divisions)  a  Prae- 
torian Prsefect  empowered  to  act  as  supreme  judge,  as  well  as 
supreme  financial  and  administrative  agent  of  the  Emperor,  in 
his  special  domain,  as  the  superintendent  of  provincial  gov- 
ernors, and  as  final  adjudicator  of  all  matters  of  dispute :  as 
full  vice-regent,  in  short,  in  civil  affairs. 

Under  the  arrangements  of  Diocletian  each  Augustus  and  each 
Caesar  had  had  a  prastorian  prasfect  associated  with  him  as  his  lieuten- 
ant, —  as  successors  under  much  altered  circumstances  to  the  title  of 
the  old-time  praetorian  praefect  of  Rome.  Under  Constantine  there 
were  the  four  praefects,  but  no  Augusti  or  Caesars  placed  over  them,  no 
master  but  Constantine  himself,  and  possessing  functions  utterly  dis- 
similar from  those  of  the  older  praetorian  praefect  in  that  they  were  not 
at  all  military,  but  altogether  civil. 

The  praetorian  guards  were  finally  abolished  under  Constantine.  For 
them  the  play  was  over. 

182.  The  four  praefectures  Constantine  divided  into  thirteen 
*  dioceses '  over  which  were  placed  vicars  or  vice-prsefects ;  and 
these  dioceses  were  in  their  turn  divided  into  one  hundred  and 
sixteen  provinces  governed,  a  few  by  pro-consuls,  a  somewhat 
larger  number  by  ^correctors,'  many  by  ^consulars,'  but  most 
by  *  presidents.' 


122       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


"  All  the  civil  magistrates,"  says  Gibbon,  "  were  drawn  from  the  pro- 
fession of  the  law."  Every  candidate  for  place  had  first  to  receive  five 
years'  training  in  the  law.  After  that  he  was  ready  for  the  oflficial 
climb :  employment  in  successive  ranks  of  the  service  might  bring  him 
at  last  to  the  government  of  a  diocese  or  even  a  prsefecture. 

183.  Such  was  the  civil  hierarchy.  Military  command  was 
vested  in  four  Masters-General  superintending  thirty-five  sub- 
ordinate commanders  in  the  provinces. 

These  subordinate  commanders  bore  various  titles ;  they  were  all 
without  distinction  dukes  (duces,  leaders)  ;  but  some  of  them  had 
attained  to  the  superior  dignity  of  counts  (comites). 

184.  The  Household  Offices.  — Constantine  emphasized  the 
break  with  the  old  order  of  things  by  permanently  establish- 
ing his  capital  at  Byzantium,  which  thereupon  received  the 
name  of  Constantinople,  a  name  whose  Greek  form  still  fur- 
ther points  the  significance  of  the  shifting  of  the  centre  of  the 
Empire.  Kome  herself  had,  so  to  say,  become  a  province,  and 
the  administration  was  in  the  Greek  East.  The  court  at  Con- 
stantinople, moreover,  took  on  the  oriental  magnificence,  treated 
itself  with  all  the  seriousness  in  points  of  ceremony,  with  all 
the  pomp  and  consideration  that  marked  the  daily  life  of  an 
Eastern  despotism.  The  household  offices,  created  in  germ  in 
the  early  days  of  the  Empire  (sec.  177),  had  now  expanded 
into  a  great  hierarchy,  centring  in  seven  notable  offices  of  state, 
and  counting  its  scores  and  hundreds  of  officials  of  the  minor 
sort.  There  was,  (1)  the  Great  Chamberlain;  (2)  the  Master  of 
Offices,  whom  later  days  would  probably  have  called  justiciar, 
a  magistrate  set  over  all  the  immediate  servants  of  the  crown ; 
(3)  an  imperial  chancellor  under  the  name,  now  entirely 
stripped  of  its  old  republican  significance,  of  Qucestor  (sec. 
156)  ;  (4)  a  Treasurer-General,  superintendent  of  some  twenty- 
nine  receivers  of  revenue  in  the  provinces,  overseer  also  of 
foreign  trade  and  certain  manufactures  ;  (5)  a  treasurer  called 
Count  of  the  Privy  Revenue  of  the  monarch;  (6  and  7)  two 
Counts  of  the  Domestics,  new  praetorian  prsefects,  commanding, 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  123 


the  one  the  cavalry,  the  other  the  infantry,  of  the  domestic 
troops,  officers  who  in  later  times  would  probably  have  been 
known  as  constable  and  master  of  the  horse. 

185.  We  have  thus  almost  complete  in  the  system  of  government 
perfected  by  Constantine  that  machinery  of  household  officers,  mili- 
tary counts,  and  provincial  lieutenants  which  was  to  serve  as  a  model 
throughout  the  Middle  Ages  wherever  empire  should  arise  and  need 
organization.  The  'companions'  (comites)  of  the  Teutonic  leaders  held 
a  much  more  honorable  position  than  did  the  domestic  servants  of  the 
Roman  Emperor,  and  their  dignity  they  transmitted  to  the  household 
officers  of  the  Teutonic  kingdoms ;  but  the  organization  effected  by 
Constantine  anticipated  that  system  of  government  which  has  given  us 
our  provincial  governors  and  our  administrative  cabinets. 

186.  The  Eastern  and  Western  Empires;   Greek  and 

Teuton. — The  conquests  within  the  Empire  effected  by  the 
Teutonic  peoples  in  the  fifth  century  and  the  centuries  imme- 
diately following  cut  away  the  West  from  the  dominions  of 
the  Emperor  at  Constantinople.  The  division  between  East 
and  West,  which  Diocletian  had  recognized  in  his  administra- 
tive arrangements,  at  length  became  a  permanent  division,  not 
merely  an  administrative,  but  a  radical  political  separation, 
and  the  world  for  a  while  saw  two  empires  instead  of  one : 
a  Byzantine  or  Greek  empire  with  its  caj^ital  at  Constan- 
tinople, and  a  Western  empire  with  its  capital  at  Eome  or 
Ravenna.  When  Italy  fell  again  nominally  to  the  Eastern 
Empire,  in  476,  she  did  not  carry  the  rest  of  Western  Europe 
with  her.  The  West  had  fallen  apart  under  the  hands  of  the 
Germans,  and  was  not  to  know  even  nominal  linity  again  until 
the  Holy  Roman  Empire  should  arise  under  Charles  the  Great 
(sec.  364).  Meantime,  however,  the  Eastern  Empire  retained 
in  large  part  its  integrity  and  vigor,  as  well  as  its  adminis- 
trative organization  also.  It  was  not  to  be  totally  overthrown 
until  1453. 

187.   Religious  Separation  and  Antagonism. — The  political 
separation  thus  brought  about  between  the  Eastern  Empire  and  the 


124       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


peoples  of  the  "West  was  emphasized  and  embittered  by  religious  differ- 
ences. Christianity  had  been  adopted  by  Constantine,  and  had  prac- 
tically continued  to  be  the  religion  of  the  Eastern  Empire  without  inter- 
ruption ;  but  the  Christian  doctrine  of  the  East  was  not  the  same  as 
the  Christian  doctrine  of  the  West ;  the  ecclesiastical  party  centring  in 
the  episcopate  at  Rome  violently  antagonized  the  doctrines  received  at 
Constantinople.  The  world  therefore  saw  two  churches  arise,  with  two 
magnates,  the  Pope  at  Rome  and  the  Patriarch  at  Constantinople,  the 
one  virtually  supreme  because  in  the  West  where  he  was  overshadowed 
by  no  imperial  throne,  the  other  dominated  by  a  throne  and  therefore 
partially  subordinate.  This  religious  difference,  accompanying  as  it 
did  differences  of  language  and  tradition  also,  the  more  effectually  pre- 
vented political  unity  and  even  political  intercourse  between  the  East 
and  the  West,  and  thus  assisted  in  setting  Western  Europe  apart  to  a 
political  development  of  her  own. 

General  Summary. 

188.  The  City  the  Centre  of  Ancient  Politics. —We  are 

now  in  a  position  to  understand  how  the  full-grown  Greek  and 
Eoman  governments,  which  are  so  perfectly  intelligible  to  our 
modern  understandings,  were  developed  from  those  ancient 
family  states  in  which  we  saw  government  begin,  and  of  which 
both  Greek  and  Roman  institutions  bore  such  clear  traces,  but 
which  it  is  so  difficult  for  us  now  to  imagine  as  realities.  It 
is  plain,  in  the  first  place,  how  that  municipal  spirit  was  gen- 
erated which  was  so  indestructible  a  force  in  ancient  politics. 
The  ancient  city  Avas  not  merely  a  centre  of  population  and  in- 
dustry, like  the  cities  of  the  present  day;  if  merchants  and 
manufacturers  filled  its  markets,  that  was  merely  an  incident 
of  the  living  of  many  people  in  close  proximity ;  and  the  exist- 
ence of  the  city  was  quite  independent  of  the  facilities  it 
offered  for  the  establishment  of  a  mart.  Life  about  a  common 
local  centre  in  compact  social  organization  was  a  necessity 
to  a  patriarchal  confederacy  of  families,  phratiies,  and  tribes. 
And  until  Roman  empire  had  trodden  out  local  independence, 
compacted  provinces,  and  so  fused  the  materials  and  marked 
the  boundaries  for  nationalities ;  until  those  nationalities  had 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  125 

been  purged  by  the  feudal  system,  kneaded  into  coherent 
masses  by  the  great  absolute  monarchies  of  the  Middle  and 
Modern  Ages,  vivified  by  Renaissance  and  Reformation,  and 
finally  taught  the  national  methods  of  the  modern  popular  rep- 
resentative state,  the  city,  the  municipality,  —  the  compact,  co- 
operative, free  population  of  a  small  locality,  —  continued  to 
breathe  the  only  political  life  of  which  the  world  could  boast. 
Politics, — the  affairs  of  the  TroXts  (poUs),  the  city,  —  divorced 
from  municipal  government  was  a  word  of  death  until  nations 
learned  that  combination  of  individual  participation  in  local 
affairs  and  representative  participation  in  national  affairs  which 
we  now  call  self-government.  The  free  cities  of  the  Middle 
Ages  are  the  links  through  which  have  been  transmitted  to  us 
the  liberties  of  G-reece  and  Rome. 

189.  The  Approaches  to  Modern  Politics  :  Creation  of  the 
Patriarchal  Presidency.  —  Rome's  city  government,  as  I  have 
shown,  fell  under  the  too  tremendous  weight  of  empire :  the 
Greek  cities  went  down  under  the  destructive  stress  of  un- 
intermitted  war  among  themselves  and  irresistible  onset  from 
Macedonia  and  Rome  ;  but  before  they  yielded  to  imperialism, 
they  had  come  at  many  points  very  near  to  modern  j^olitical 
practice.  And  the  stages  by  which  the  approach  was  made 
are  comparatively  plain.  It  is  probable,  to  begin  with,  that 
the  governments  depicted  in  Homer  were  not  the  first  but  the 
second  form  of  the  primitive  city  constitution.  The  king  had 
doubtless  first  of  all  been  absolute  patriarchal  chief  of  the 
confederated  tribes,  and  the  king's  council  to  be  seen  in  Homer 
may  be  taken  to  represent  the  success  of  an  aristocratic  revo- 
lution whose  object  it  had  been  to  put  the  heads  of  the  ancient 
families  upon  a  footing  of  equality  with  the  king.  He  had 
thus  become  merely  their  patriarchal  president. 

190.  Citizenship  begins  to  be  Dissociated  from  Kinship.  — 
But  this  aristocracy  contained  the  seeds  of  certain  revolution. 
As  dissociated  chieftains  the  Elders  had  maintained  at  least  a 
distinct  family  authority,  and  so  preserved  the  integrity  of  each 


126       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 

separate  family  organization ;  but  as  associated  councillors  they 
in  a  measure  merged  their  individuality,  at  least  their  soli- 
darity ;  the  law  of  primogeniture  began  to  be  weakened,  and 
a  drift  was  started  towards  that  personal  individuality,  as  con- 
tradistinguished from  corporate,  family  individuality,  which 
distinguishes  modern  from  very  ancient  politics.  Men  began 
to  have  immediate  connection  with  the  state,  no  longer  touch- 
ing it  only  through  their  family  chief.  Citizenship  began  to 
dissociate  itself  from  kinship. 

191.  Influence  of  a  Non-Citizen  Class.  —  And  by  the  time 
individual  citizenship  had  thus  emerged,  a  population  alien  to 
the  ancient  kin  and  unknown  to  the  politics  of  the  ancient  city 
was  at  the  gates  of  the  constitution  demanding  admittance.  A 
non-citizen  class,  alien  or  native  in  origin,  plebs,  clients,  metics 
or  perioeci,  assisted  to  riches  by  enterprise  in  trade  or  by  in- 
dustry in  the  mechanic  arts,  or  else  sprung  into  importance  as 
the  mainstay  of  standing  armies,  demanded  and  gained  a  voice 
in  the  affairs  of  states  which  they  had  wearied  of  serving  and 
had  determined  to  rule. 

192.  Discussion  determines  Institutions.  — And  they  brought 
with  them  the  most  powerful  instrument  of  change  that  poli- 
tics has  ever  known.  The  moment  any  one  was  admitted  to 
political  privileges  because  he  demanded  it,  and  not  because  en- 
titled to  it  by  blood,  it  was  evident  that  the  immemorial  rule 
of  citizenship  had  been  finally  overset  and  that  thereafter  dis- 
cussion, a  weighing  of  reasons  and  expediencies,  was  to  be  the 
only  means  of  determining  the  forms  of  constitutions.  Discus- 
sion is  the  greatest  of  all  reformers.  It  rationalizes  everything 
it  touches.  It  robs  principles  of  all  false  sanctity  and  throws 
them  back  upon  their  reasonableness.  If  they  have  no  reason- 
ableness, it  ruthlessly  crushes  them  out  of  existence  and  sets 
up  its  own  conclusions  in  their  stead.  It  was  this  great  re- 
former that  the  plebs  had  brought  in  with  them.  It  was  to 
be  thereafter  matter  for  discussion  who  should  be  admitted  to 
the  franchise. 


THE  GOVERNMENTS  OF  GREECE  AND  ROME.  127 

193.  Politics  separated  from  Religion.  —  The  results, 
though  oftentimes  slow  in  coming,  were  momentous.  Laws 
and  institutions  took  on  changed  modes  of  life  in  this  new 
atmosphere  of  discussion.  The  outcome  was,  in  brief,  that 
Politics  took  precedence  of  Religion.  Law  had  been  the  child 
of  Religion:  it  now  became  its  colleague.  It  based  its  com- 
mands, not  on  immemorial  customs,  but  on  the  common  will. 
The  principles  of  government  received  the  same  life.  Votes 
superseded  auguries  and  the  consultation  of  oracles.  Religion 
could  not  be  argued ;  politics  must  be.  Their  provinces  must, 
therefore,  be  distinguished.  Government  must  be  the  ward 
of  discussion :  religion  might  stay  with  the  unchanging  gods. 

194.  Growth  of  Legislation.  —  Nor  was  this  the  only  con- 
sequence to  law.  Once  open  to  being  made  by  resolution  of 
assemblies,  it  rapidly  grew  both  in  mass  and  in  complexity. 
It  became  a  multiform  thing  fitted  to  cover  all  the  social  needs 
of  a  growing  and  various  society ;  and  a  flexible  thing  apt  to 
be  adjusted  to  changing  circumstances.  Evidently  the  legis- 
lation of  modern  times  was  not  now  far  off  or  difficult  of  ap- 
proach, should  circumstances  favor. 

195.  Empire.  — Finally,  the  conquests  of  the  Greeks  under 
Alexander  suggested,  and  Rome  in  her  conquering  might  sup- 
plied, what  had  not  been  dreamed  of  in  early  Aryan  politics, 
namely,  wide  empire,  vast  and  yet  centralized  systems  of  ad- 
ministration. The  first  framework  was  put  together  for  the 
organization  of  widespread  peoples  under  a  single  government. 
Ancient  politics  were  shading  rapidly  off  into  modern. 


Representative  Authorities. 

On  Greek  Institutions  : 
Gilbert,  Gustav,  "  Handbuch   der  Griechischen  Staatsalterthiimer." 
Leipzig,  1881. 

Schdmann,  G.  F.,  "  The  Antiquities  of  Greece  :  The  State."  Trans- 
lated by  E.  G.  Hardy  and  J.  S.  Mann.    London,  1880. 


128       THE  GOVERNMENTS  OF  GREECE  AND  ROME. 


Coulanges,  F.  de,  "  The  Ancient  City."   Translated  by  Willard  Small. 
Boston,  1882. 

Kuhn,  E.,  "  Ueber  die  Entstehung  der  Stadte  der  Alten.  Komenver- 

fassung  und  Synoikismos."  Leipzig. 
Bluntsclili,  J.  C,  "  AUegemeine  Statslehre."    Book  I.,  Chaps.  III.  and 

VI.    Stuttgart,  1875.    There  is  an  American  translation  of  this 

work. 

Smith,  "  Dictionary  of  Grecian  and  Roman  Antiquities."  1858. 
Cox,  Rev.  Sir  (Jeo.  W.,  "  Lives  of  Greek  Statesmen."  (Harper's.) 
Chaps,  on  Solon  and  Kleisthenes. 

On  points  of  Greek  History  : 

Grote,  Geo.,  "  History  of  Greece."    Very  full  for  the  cities  of  Hellas 

outside  the  classical  mainland. 
Curtius,  Ernst,  "  History  of  Greece.*' 

Droysen,  J.  G.,  "  Geschichte  des  Hellenismus."    For  the  Macedonian 

period.    2d  ed.,  1877-78. 
Curteis,  A.  M.,  "  Rise  of  the  Macedonian  Empire."   (Series  of  Epochs 

of  Ancient  History.^ 

On  Roman  Institutions  : 

Marquardt  and  Mommsen,  "  Handbuch  der  Romischen  Alterthiimer." 

6  vols.  1871. 
Mommsen,  T.,  "  Romisches  Staatsrecht." 
Coulanges,  F.  de,  "  The  Ancient  City." 

Bluntschli,  J.  C,  *'  Allgemeine  Statslehre."    Book  I.,  Chap.  III. 
Arnold,  W.  T.,  "  Roman  Provincial  Administration,  to  the  Accession 

of  Constantine  the  Great."    London,  1879. 
Smith,  "  Dictionary  of  Grecian  and  Roman  Antiquities."  1858. 

On  points  of  Roman  History : 

Niebuhr,  "  Lectures  on  the  History  of  Rome." 
Ihne,  "History  of  Rome."    3  vols.  1871. 

Arnold,  T.,  "  History  of  Rome,"  to  the  second  Punic  War.  1846-49. 
Mommsen,  T.,  "  History  of  Rome"  and  "  Provinces  of  the  Empire." 
Capes,  "  The  Early  Empire."    (Series  of  Epochs  of  Ancient  History.} 
Merivale,  "  History  of  the  Romans  under  the  Empire." 
Gibbon,  "  Decline  and  Fall  of  the  Roman  Empire." 


IV. 


EOMAN  DOMINION  AND  KOMAN  LAW. 

196.  Currency  of  Roman  Law.  —  Eoman  law  has  entered 
into  all  modern  systems  of  jurisprudence  as  the  major  element 
in  their  structure  not  only,  but  also  as  a  chief  source  of  their 
principles  and  practice,  having  achieved  perpetual  dominancy 
over  all  legal  conception  and  perpetual  presidency  over  all  legal 
development  by  reason  alike  of  its  singular  perfection  and  its 
world-wide  currency;  and  it  was  Eoman  empire  which  gave 
to  that  law  both  its  quality  and  its  universality.  The  charac- 
ter of  Eoman  law  and  the  course  and  organization  of  Eoman 
conquest  are,  therefore,  topics  which  must  be  kept  in  mind 
together. 

197.  Character  of  Early  Roman  Law.  —  Until  Eome  had 
gone  quite  far  in  her  career  of  conquest  Eoman  law  was,  per- 
haps, not  more  noteworthy  than  Greek  law  or  early  Germanic 
custom.  In  the  early  history  of  the  city  her  law  was  only  a 
body  of  ceremonial  and  semi-religious  rules  governing  the  rela- 
tions of  the  privileged  patrician  gentes  to  each  other  and  to  the 
public  magistrates.  The  proper  procedure  for  the  settlement 
of  disputes  between  citizens  was  a  sacerdotal  secret,  from  all 
knowledge  of  which  the  commonalty  was  entirely  shut  out. 
Solemn  arbitration  under  complex  symbolical  forms  was  almost 
the  whole  of  legal  practice,  outside  the  private  adjudications 
of  law  by  family  authorities.  If  any  provision  existed  for 
securing  the  rights  of  a  non-patrician,  he  could  know  what 
that  provision  was  only  by  putting  his  case  to  the  test  of  a 


130 


ROMAN  DOMINION  AND  ROMAN  LAW. 


trial :  and  lie  knew  that  even  when  that  case  had  been  brought 
to  a  successful  issue,  no  precedent  had  been  established ;  it  was 
still  a  secret  with  the  privileged  classes  what  the  general  rules 
of  the  law  might  be. 

198.  Plebeian  Discontent  with  the  Law :  the  XII  Tables. 
—  In  the  breaking  up  of  this  selfish  and  narrow  system,  as  in 
the  modification  of  political  practice,  the  imperative  discontent 
of  the  plebeians  was  the  chief  force.  They  early  demanded 
admission  to  the  knowledge  of  the  laiv  as  well  as  to  the  exer- 
cise of  the  magisterial  power.  The  first  step  upon  which  they 
insisted  was  the  codification  and  publication  of  existing  law. 
Accordingly,  in  451  and  450  b.c,  the  now  celebrated  XII 
Tables  were  prepared  and  made  public  by  two  successive  spe- 
cial commissions  of  ten,  the  Decemvirs.  The  first  decemvirate 
commission  consisted  altogether  of  patricians,  and  is  said  to 
have  prepared  the  first  ten  '  tables '  of  the  law.  The  second 
included  three  plebeians  and  added  two  more  tables  to  the  code. 
Probably  this  was  the  first  time  that  the  legal  practices  of  the 
city  had  been  reduced  to  anything  like  systematic  statement ; 
and  in  being  stated  they  must  have  been  to  a  certain  extent 
modified.  Written  exposition  was  a  thing  almost  entirely 
foreign  to  the  habit  of  that  primitive  age ;  both  because  of 
the  limitations  imposed  by  mental  habit,  therefore,  and  of  the 
difficulties  created  by  the  unwilling  materials  with  which  they 
had  to  write,  the  sentences  of  the  law  engraved  upon  the 
copper  tablets  set  up  in  the  Forum  must  have  been  brief  and 
compact.  By  being  thus  condensed  the  law  must,  moreover, 
have  lost  some  of  its  original  flexibility  and  have  become  the 
more  rigid  for  being  made  the  more  certain,  (Compare 
sec.  71.) 

The  forms  of  legal  actions  were  still  held  back :  these  the 
XII  Tables  did  not  contain  ;  and  it  was,  after  all,  upon  a 
knowledge  of  the  forms  of  action  that  the  patrician  monopoly 
of  justice  chiefly  depended.  It  required  a  new  and  energetic 
plebeian  agitation  to  make  public  the  valuable  secrets  of  ]^ro- 


ROMAN  DOMINION  AND  ROMAN  LAW.  131 

cedure,  —  secrets  necessarily  so  weighty  in  an  age  when  law 
was  married  to  religion,  and  when  religion  was  so  largely  a 
thing  of  forms  and  ceremonies.  Finally,  however,  the  new 
agitation  also  was  successful,  and  the  plebeians  came,  so  to 
say,  into  complete  possession  of  the  law. 

199.  The  Growth  of  the  Law  :  Interpretation.  —  But  there 
was  advantage  in  certainty  as  to  the  content  of  the  law.  The 
law  was  now  a  thing  known  of  all,  at  least,  and  not  a  private 
and  peculiar  cult :  and  the  XII  Tables  became  the  corner-stone 
of  the  whole  structure  of  Koman  jurisprudence.  All  legal  in- 
terpretation began  with  the  XII  Tables ;  all  subsequent  inter- 
pretative development  proceeded  from  them  out.  For  the  chief 
principle  of  growth  in  Koman  law  was  interpretation,  adjust- 
ment, rather  than  legislation :  the  application  of  old  principles 
to  new  cases,  not  the  formulation  of  new  principles. 

200.  The  Praetors :  the  Praetor  Urbanus.  —  This  princi- 
ple of  growth  becomes  most  evident  in  the  legal  history  of 
Kome  after  the  creation  of  the  Prsetorships  and  the  investiture 
of  the  Praetors  with  the  judicial  functions  formerly  exercised 
by  consuls  or  king.  There  was  a  City  Praetor  (Prcetor  urbanus) 
and  a  Praetor  of  the  Foreigners  {PrrMor  peregrinus'^).  The 
City  Praetor  was  the  magistrate  to  whom  citizens  resorted  for 
the  settlement  of  conflicting  claims.  He  did  not  himself  settle 
the  matter  between  them,  but  he  laid  the  legal  basis  for  its 
settlement.  Having  heard  their  statement  of  their  case,  he 
sent  it  for  decision  to  some  private  citizen  whom  he  nominated 
judex,  or  arbitrator,  for  the  occasion,  accompanying  his  refer- 
ence of  the  case  with  instructions  to  the  arbitrator  in  which 
he  not  only  set  forth  the  question  at  issue,  but  also  formulated 
the  law  to  which  the  decision  must  conform.  Very  many  cases 
were  referred  thus  each  to  a  single  judex;  in  many  instances, 
again,  they  were  sent  to  a  number  of  judices  who  constituted  a 
sort  of  board  or  jury  to  look  into  the  merits  of  the  controversy. 


1  ''Prcetor  qui  jus  dicit  inter  peregrinos." 


132 


ROMAN  DOMINION  AND  ROMAN  LAW. 


Always,  however,  Prsetor  and  judices  stood  towards  each  other 
in  much  the  same  relation  that  the  judge  and  jury  of  our  own 
system  hold  towards  one  another  :  except  that  the  Praetor  and 
Judices  did  not  sit  together  and  hear  cases  at  the  same  time. 
They  acted  separately  and  at  different  times.  But  the  Praetor 
interpreted  the  law,  and  the  judices  passed  upon  the  facts. 

201.  The  Law  and  the  Praetor's  Application  of  it.  —  The 
law  which  the  Praetor  had  to  expound  and  apply  in  the  formulce 
or  briefs  which  he  sent  down  to  the  judices,  as  at  once  their 
warrant  and  their  instructions,  was  not  a  law  constantly  ad- 
vanced and  adjusted  by  legislation.  It  was,  for  the  most  part, 
only  the  XII  Tables,  a  small  body  of  Senatus-consulta,  or 
senatorial  decrees,  and  a  few  legal  principles  introduced  by 
popular  agitation  during  the  long  struggle  of  the  plebeians  for 
political  privilege.  Of  formal  law-making  such  as  we  are  now- 
adays accustomed  to  look  for  there  was  almost  none  to  help 
him.  He  himself,  therefore,  became  to  all  intents  and  pur- 
poses a  legislator.  The  growth  of  the  city,  and  the  constant 
changes  of  circumstance  and  occasion  for  the  use  of  his  law 
functions  which  must  have  attended  its  growth,  of  course  gave 
rise  to  cases  without  number  which  the  simple,  laconic  laws  of 
the  early  time  could  not  possibly  have  contemplated.  To  these, 
however,  the  Praetor  had  to  apply,  with  what  ingenuity  or 
origination  he  possessed,  such  general  rules  and  conceptions  as 
he  could  discover  in  the  ancient  codes  :  and  of  course  so  great 
a  development  of  interpretation  insensibly  gave  birth  to  new 
principles.  The  Praetor,  consciously  or  unconsciously,  became 
a  source  of  law. 

202.  The  Praetor's  Edict.  —  Xor  were  his  interpretative 
adjustments  of  the  law  confined  to  the  ^formulas'  concern- 
ing individual  cases  which  he  sent  to  the  judices.  At  the  be- 
ginning of  his  year  of  ojffice  he  published  an  Edict  in  which 
he  formally  accepted  the  principles  acted  on  by  his  prede- 
cessors, and  announced  such  new  rules  of  adjudication  as  he 
intended  to  adopt  during  his  year  of  authority.    These  new 


ROMAN  DOmNION  AND  ROMAN  LAW. 


133 


rules  were  always,  in  form  at  least,  rules  of  procedure.  The 
Praetor  announced,  for  example,  that  he  would,  hereafter,  regard 
property  held  by  certain  methods,  hitherto  considered  irregular 
or  invalid,  as  if  they  were  held  according  to  due  and  immemo- 
rial form,  and  would  consider  the  title  acquired  by  means  of 
them  as  valid.  He  did  not  assume  to  make  such  titles  valid : 
that  would  be  to  change  the  law.  But  he  could  promise  in 
adjudicating  cases,  to  treat  them  as  if  the j  were  valid,  and  so 
practically  cure  their  defects.  In  a  word,  he  could  not  create 
rights,  in  theory  at  least ;  but  he  could  create  and  withhold 
remedies.  It  was  thus  that  through  successive  edicts  the  law 
attained  an  immense  growth.  And  such  growth  was,  of  course, 
of  the  most  normal  and  natural  character.  By  such  slow,  con- 
servative, practical,  day  to  day  adjustments  of  practice  the  law 
was  made  easily  to  fit  the  varying  and  diversified  needs  of  a 
growing  and  progressive  people. 

203.  The  Praetor  Peregrinus.  —  The  functions  of  the  Prae- 
tor of  the  Foreigners  were  similar  to  those  of  the  City  Praetor, 
but  much  less  limited  by  the  prescriptions  of  old  law.  He  ad- 
ministered justice  between  resident  foreigners  in  Eome  itself, 
between  Roman  citizens  and  foreigners,  and  between  citizens 
of  different  cities  within  the  Roman  dominion.  Roman  law, 
—  the  jus  civile,  the  law  administered  and  developed  by  the 
Proetor  urhaniis  —  was  only  for  Romans.  Its  origins  and  fun- 
damental conceptions  marked  it  as  based  upon  tribal  customs 
and  upon  religious  sanctions,  which  could  only  apply  to  those 
who  shared  the  Roman  tradition  and  worship.  It  could  not 
apply  even  as  between  a  Roman  and  an  alien.  The  Latin 
and  Italian  towns  which  Rome  brought  under  her  dominion 
were,  therefore,  suffered  to  retain  their  own  law  and  judicial 
practices  for  their  own  residents,  so  far  at  least  as  their  reten- 
tion offered  no  contradiction  to  Rome's  policy  or  authority; 
but  the  law  of  one  town  was  of  course  inapplicable  to  the  citi- 
zens of  any  other,  and  therefore  could  not  be  used  in  cases 
between  citizens  of  different  towns.    In  all  such  cases,  when 


134 


KOMAN  DOMINION  AND  ROMAN  LAW. 


Eoman  law  could  not  be  appealed  to,  the  Prcetor  peregrinus 
was  called  upon  to  declare  what  principles  should  be  observed. 

204.  The  Jus  Gentium. — The  first  incumbents  of  this  deli- 
cate and  difficult  office,  of  Praetor  peregrinus,  were  doubtless 
arbitrary  enough  in  their  judgments,  deciding  according  to 
any  rough  general  criteria  of  right  or  wrong,  or  any  partial 
analogies  to  similar  cases  under  Eoman  law  that  happened 
to  suggest  themselves.  But  they  seem,  nevertheless,  to  have 
had  a  sincere  purpose  to  be  just,  and  at  length  the  Roman 
habit  of  being  systematic  enabled  them  to  hit  upon  certain 
useful,  and  as  it  turned  out,  momentous,  general  principles. 
They  of  course  had  every  opportunity  for  a  close  observation 
and  wide  comparison  of  the  legal  practices  and  principles  ob- 
taining among  the  subject  nations  among  whom  their  duties 
lay,  and  they  presently  discovered  certain  substantial  corre- 
spondences of  conception  among  these  on  many  points  fre- 
quently to  be  decided.  With  their  practical  turn  for  system, 
they  availed  themselves  of  these  common  conceptions  of  jus- 
tice as  the  basis  of  their  adjudications.  They  sought  more  and 
more  to  find  in  each  case  some  common  standing-ground  for 
the  litigants  in  some  legal  doctrine  acknowledged  among  the 
people  of  both.  As  these  general  principles  of  universal  accept- 
ance multiplied,  and  began  to  take  systematic  form  under  the 
cumulative  practice  of  successive  Praetors,  *the  resultant  body 
of  law  came  to  be  known  among  the  Pomans  as  the  jus  gen- 
tium, the  law  of  the  nations,  — the  law,  i.e.,  common  to  the 
nations  among  whose  members  Roman  magistrates  had  to 
administer  justice. 

205.  The  Jus  Gentium  not  International  Law.  —  This  body 
of  law  had,  of  course,  nothing  in  common  with  what  we  now 
call  the  Law  of  Nations,  that  is.  International  Law.  Inter- 
national law  relates  to  the  dealings  of  nation  with  nation,  and 
is  in  largest  part  public  law  —  the  law  of  state,  of  political, 
action  (sees.  1216,  1217).  The  jus  gentium,  on  the  other 
hand,  was  only  a  body  of  private  and  commercial  law,  chiefly 


ROMAN  DOMINION  AND  ROMAN  LAW.  135 

tlie  latter.  It  had  nothing  to  do  with  state  action,  but  con- 
cerned itself  exclusively  with  the  relations  of  individuals  to 
each  other  among  the  races  subject  to  Eome.  Rome  decided 
political  policy,  her  Foreign  Praetor  decided  onl}^  private  rights. 

206.  Influence  of  the  Jus  Gentium  upon  the  Jus  Civile. 
—  But  of  course  the  jus  gentium  attained  an  influence  of  great 
importance,  even  over  the  development  of  Roman  law  itself. 
Its  principles,  partaking  of  no  local  features  or  special  ideas 
produced  by  the  peculiar  history  or  circumstances  of  some  one 
people,  but  made  up  of  apparently  universal  judgments  as  to 
right  and  wrong,  justice  and  injustice,  seemed  to  be  entitled 
to  be  considered  statements  of  absolute,  abstract  equity.  As 
they  became  perfected  by  application  and  studious  adaptations 
to  the  needs  of  a  various  administration  of  justice,  it  became 
more  and  more  evident  that  the  jus  civile,  the  exclusive  law 
under  which  the  Roman  lived,  was  arbitrary  and  illiberal,  by 
comparison.  The  'PTSstoi  pei'egrinus  began  to  set  lessons  for  the 
Praetor  urbanus.  The  jus  civile  began  to  borroAv  from  the  jus 
gentium;  and  as  time  advanced,  it  more  and  more  approximated 
to  it,  until  it  had  been  completely  liberalized  by  its  example. 

207.  Administration  of  Justice  in  the  Provinces.  —  The 
authority  of  the  Foreign  Praetor  did  not  extend  beyond  Italy, 
beyond  the  city's  immediate  dependencies.  In  the  'Prov- 
inces '  proper  the  governors  exercised  the  functions  of  Praetor 
peregrinus.  The  towns  of  the  provinces,  like  the  towns  of 
Italy,  were  left  with  their  own  municipal  organization  and 
their  own  systems  of  judicature.  But  between  the  citizens  of 
different  districts  of  a  province  there  were  cases  constantly 
arising,  of  course,  which  had  to  be  brought  before  the  gov- 
ernor as  judge.  Whether  as  pro-consul,  therefore,  or  as  pro- 
praetor, or  under  whatever  title,  the  governor  was  invested  with 
praetorial  functions,  as  well  as  with  military  command  and  civil 
supremacy.  It  was  with  principles  of  judicial  administration 
that  the  governor's  edict,  issued  on  entering  upon  office,  was 
largely  concerned.    Here  was  another  and  still  larger  field  for 


136 


ROMAN  DOMINION  AND  EOMAN  LAW. 


the  growth,  of  the  jus  gentium,  —  an  almost  unlimited  source 
of  suggestion  to  Eoman  lawyers. 

208.  The  Law  of  Nature. — As  Eome's  conquest  grew  and 
her  law  expanded  she  did  not  fail  to  breed  great  philosophical 
lawyers  who  saw  the  full  significance  and  importance  of  the  jus 
gentium  and  consciously  borrowed  from  it  liberal  ways  of  in- 
terpretation. And  they  were  assisted  at  just  the  right  moment 
by  the  philosophy  of  the  Greek  Stoics.  The  philosophy  of 
the  Stoics  was  in  the  ascendency  in  Greece  when  Rome  first 
placed  her  own  mind  under  the  influence  of  her  subtile  sub- 
jects in  Attica  and  the  Peloponnesus  :  and  that  philosophy  was 
of  just  the  sort  to  commend  itself  to  the  Roman.  Its  doctrines 
of  virtue  and  courage  and  devotion  seemed  made  for  his  prac- 
tical acceptance  :  its  exaltation  of  reason  was  quite  native  to  his 
mental  habit.  But  its  contribution  to  the  thought  of  the 
Roman  lawyer  was  its  most  noteworthy  product  in  Rome. 

The  Stoics,  like  most  of  the  previous  schools  of  philosophers 
in  Greece,  sought  to  reduce  the  operations  of  nature  both  in 
human  thought  and  in  the  physical  universe  to  some  simple 
formula,  some  one  principle  of  force  or  action,  which  they  could 
recognize  as  the  Law  of  Nature.  They  sought  to  square  human 
thought  with  such  abstract  standards  of  reason  as  might  seem 
to  represent  the  methods  or  inspirations  of  Universal  Reason, 
the  Reason  inherent,  indwelling  in  Nature.  In  the  mind  of 
the  Roman  lawyer  this  conception  of  a  Law  of  Nature  connected 
itself  with  the  general  principles  of  the  jus  gentium,  and  served 
greatly  to  illuminate  them.  Probably,  it  seemed,  these  con- 
ceptions of  justice  which  the  Foreign  Praetors  had  found  com- 
mon to  the  thought  of  all  the  peoples  with  whom  they  had  come 
into  contact  were  manifestations  of  a  natural,  universal  law  of 
reason,  a  Law  of  Nature  superior  to  all  systems  contrived  by 
men,  implanted  as  a  principle  of  life  in  all  hearts. 

209.  The  jus  gentium  thus  received  a  peculiar  sanction  and 
took  on  a  dignity  and  importance  such  as  it  had  never  had  so 
long  as  it  was  merely  a  bod}^  of  empirical  generalizations.  Its 


ROMAN  DOMINION  AND  ROJVIAN  LAW. 


137 


supremacy  was  now  assured.  The  jus  civile  more  and  more 
yielded  to  its  influences,  and  more  and  more  rapidly  the  two 
systems  of  law  tended  to  become  but  one. 

210.  Roman  Citizenship  and  the  Law.  —  This  tendency 
was  aided  by  the  gradual  disappearance  of  all  the  most  vital 
distinctions  between  the  citizen  of  Home  herself  and  citizens 
of  her  subject  cities  and  provinces.  Step  by  step  the  citizens 
first  of  the  Latin  towns,  then  those  of  the  Italian  cities,  then 
the  citizens  of  favored  outlying  districts  of  the  Empire,  were 
admitted,  first  to  a  partial  and  finally  to  a  complete  partici- 
pation in  Roman  citizenship.  And  of  course  with  Roman 
citizenship  went  Roman  law.  In  this  way  the  jus  civile  and  the 
jus  gentiian  advanced  to  meet  each  other.  Under  the  emperors 
this  drift  of  affairs  was  still  further  strengthened  and  quick- 
ened till  Caracalla's  bestowal  of  citizenship  upon  all  the  in- 
habitants of  the  Roman  world  was  reached  as  a  logical  result. 

211.  The  Jurists. — As  Roman  law  grew  to  these  world- 
wide proportions  and  became  more  and  more  informed  by  the 
spirit  of  an  elevating  philosophy  and  the  liberal  principles 
of  an  abstract  equity,  it  of  course  acquired  a  great  attrac- 
tion for  scholarly  men  and  had  more  and  more  the  benefit 

,  of  studious  cultivation  by  the  best  minds  of  the  city.  The 
Roman  advocate  was  not  the  trained  and  specially  instructed 
man  that  the  modern  lawyer  is  expected  to  be.  For  some  time 
after  the  law  began  to  be  systematically  studied  there  were  no 
law  schools  where  systematic  instruction  could  be  obtained ; 
there  were  no  lawyers'  offices  in  which  the  novice  could  serve, 
and  discover  from  day  to  day  the  ins  and  outs  of  practice. 
The  advocate  was  scarcely  more  than  an  arguer  of  the  facts 
before  the  judices :  he  did  not  lay  much  stress  upon  his  ow^n 
view  of  the  law,  or  often  pretend  to  a  profound  acquaintance 
with  its  principles.  But  there  did  by  degrees  come  into  ex- 
istence a  class  of  learned  jurists,  a  sort  of  literary  lawyers, 
who  devoted  themselves,  not  to  advocacy  before  the  jury-courts, 
but  to  the  private  study  of  the  law  in  its  developments  from  the 


138  EO^^IAN  DOMINION  AND  ROMAN  LAW. 

XII  Tables  through,  the  interpretations  of  the  praetorial  edicts 
and  the  suggestions  of  the  jus  gentium.  They  set  themselves  to 
search  out  and  elucidate  the  general  philosophical  principles 
lying  at  the  roots  of  the  law,  to  explore  its  reasons  and  sys- 
tematize its  deductions.  These  jurisprudents  were  of  course 
not  slow  to  draw  about  themselves  a  certain  clientage.  Though 
entirely  distinct  as  a  class  from  the  ^orators/  or  barristers, 
who  assisted  clients  in  the  courts,  they  established  in  time  a 
sort  of  '  ofiB.ce  practice,'  as  we  should  call  it.  Cases  were  stated 
to  them  and  their  opinions  asked  as  to  the  proper  judgments 
of  the  law.  They  attracted  pupils,  too,  with  whom  they  dis- 
cussed hypothetical  cases  of  the  greatest  possible  scope  and 
variety. 

212.  Influence  of  the  Jurists. — In  the  hands  of  these 
private  jurists  the  law  of  course  received  an  immense  theo- 
retical development.  And  this  very  much  to  its  advantage. 
For  Eoman  thinking,  like  Roman  practice,  was  always  emi- 
nently conservative.  The  jurists  took  no  unwarrantable  lib- 
erties with  the  law.  They  simply  married  its  practice  to  its 
philosophy,  no  one  forbidding  the  banns.  They  most  happily 
effected  the  transfusion  of  the  generous  blood  of  the  jus  gentium 
into  the  otherwise  somewhat  barren  system  of  the  jus  civile. 
They  were  chief  instruments  in  giving  to  Eoman  law  its  ex- 
pansiveness  and  universality.  Por  of  course  their  judgments 
were  quickly  heard  of  in  the  courts.  They  often  gave  written 
as  well  as  oral  opinions,  and  these  were  always  hearkened  to 
with  great  respect.  Their  published  discussions  of  fictitious 
causes  came  to  have  more  and  more  direct  influence  upon  the 
result  of  those  which  actually  arose  in  litigation.  Advocates 
and  litigants  alike  turned  to  them  for  authoritative  views  of 
the  law  to  be  observed.  And  a  legal  literature  of  the  greatest 
permanent  interest  and  importance  eventually  sprang  into  ex- 
istence. The  jurists  collected  and  edited  the  written  sources 
of  the  law,  such  as  the  Edicts  of  the  Praetors,  and  set  them  in 
the  fuller  and  fuller  light  of  an  advancing  scientific  criticism. 


KOMAN  DOMINION  AND  ROMAN  LAW. 


139 


Their  commentaries  became  of  scarcely  less  importance  than 
the  Edicts  themselves,  containing,  as  they  did,  the  reasoned 
intent  of  Table  and  Edict. 

213.  The  Jurisconsults  under  the  Empire.  —  This  scien- 
tific cultivation  of  the  law  by  scholarly  students  began  before 
the  end  of  the  Eepublic,  was  far  advanced,  indeed,  at  the  time 
the  Empire  was  established.  The  beginnings  of  the  scientific 
law  literature  of  which  I  have  spoken  date  as  far  back  as  100 

B.C. 

The  dates  100  b.c.  and  250  a.d.  are  generally  taken  as  marking  the 
beginning  and  end  of  the  important  literary  production  on  the  part  of 
the  jurists.  The  most  distinguished  names  connected  with  this  litera- 
ture are  those  of  Papinian,  Ulpian,  Gains,  and  Julius  Paulus. 

It  was  under  the  emperors,  however,  that  the  greater  part 
of  this  peculiar  literary  and  interpretative  development  at  the 
hands  of  the  jurists  took  place.  For  under  the  imperial  system 
the  jurists  were  given  an  exceptional  position  of  official  con- 
nection with  the  administration  of  the  law  such  as  no  other 
similar  class  of  lawyers  has  ever  possessed  under  any  other 
polity.  Certain  of  the  more  distinguished  of  them  were  offi- 
cially granted  the  jus  respondendi  which  custom  had  already 
in  effect  bestowed  upon  them,  —  the  right,  that  is,  to  give 
authoritative  opinions  which  should  be  binding  upon  juries. 
Even  under  the  Eepublic  the  opinions  of  the  jurisconsults  had 
been  authoritative  in  fact ;  what  the  imperial  commission  did 
was  to  render  them  authoritative  in  law.  Of  course  if  advo- 
cates or  litigants  who  were  on  opposite  sides  in  any  case  could 
produce  opposite  or  differing  opinions  from  these  formally 
commissioned  jurisconsults,  it  devolved  upon  the  judices  to 
choose  between  them ;  but  they  were  hardly  at  liberty  to  take 
neither  view  and  strike  out  an  independent  judgment  of  their 
own,  and  when  the  jurisconsults  agreed,  the  judices  were  of 
course  bound  to  decide  in  accordance  with  their  opinion. 
Certain  writers  — '  text  writers,'  as  we  call  them  —  on  our 
own  law  have,  by  virtue  of  perspicacity  and  learning,  acquired 


140  ROMAN  DOMINION  AND  ROMAN  LAW. 


an  influence  in  our  courts  not  much  inferior  to  that  of  the 
Eoman  jurisconsults,  but  no  Blackstone  or  Story  has  ever  been 
commissioned  by  the  state  to  be  authoritative. 

Under  the  Empire  the  jurisconsults  acquired  more  than  the  right  of 
response :  they  became  actively  engaged  in  the  administration  of  law, 
exercising  judicial  functions  and  applying  to  actual  adjudication  the 
tests  which  they  had  in  the  republican  period  applied  only  in  the  form 
of  unofficial  opinions. 

In  the  time  of  Augustus  we  find  two  law  schools  in  Rome,  and  later 
times  saw  many  others  established  in  important  provincial  cities. 

214.  Imperial  Legislation.  —  The  influence  of  the  juriscon- 
sults extended  beyond  the  administration  to  the  creation  of 
law.  Legislation  under  the  early  emperors,  from  Augustus  to 
Hadrian,  retained  something  of  its  old  form.  During  the 
reign  of  Augustus  the  popular  assemblies  were  still  given  leave 
to  pass  upon  the  laws  which  the  emperor,  as  tribune,  sub- 
mitted to  them ;  and  during  a  great  part  of  the  imperial  period 
the  Senate  was  formally  consulted  concerning  most  of  the 
matters  of  law  and  administration  over  which  it  had  once  had 
exclusive  jurisdiction  (sees.  165-170).  But  neither  Senate 
nor  people  were  independent.  The  former  was  at  the  mercy 
of  the  emperor's  power  as  censor ;  the  latter  were  at  the  dis- 
posal of  his  powers  as  tribune.  Law,  consequently,  came  to 
emanate  more  and  more  undisguisedly  from  the  emperor's 
single  will,  —  from  his  edicts  as  magistrate  and  from  his  in- 
structions and  decisions  as  head  of  the  judicial  administration. 
And,  happily  for  Roman  law,  the  emperors  made  trusted 
counsellors  of  the  leading  jurisconsults  and  suffered  them- 
selves to  be  guided  by  them  in  their  more  important  law- 
creations  and  judgments.  Probably  most  edicts  and  imperial 
decisions  were  prepared,  if  not  conceived,  by  competent  law- 
yers. Imperial  legislation,  therefore,  in  the  most  critical 
period  of  its  early  development,  was  under  the  guidance  of  the 
most  enlightened  and  skilful  jurists  of  the  time,  and  so  was 
kept  to  the  logical  lines  of  its  normal  and  philosophical  growth. 


ROMAN  DOMINION  AND  EOMAN  LAW. 


141 


The  jurisconsults  may  be  said  to  have  presided  over  all  phases 
of  its  development  at  the  important  period  when  that  develop- 
ment was  conscious  and  deliberate. 

215.  The  Codification  of  the  Law.  —  The  last  important 
step  in  the  preparation  of  Eoman  law  for  modern  uses  was  its 
codification  by  the  later  emperors.  Several  emperors  under- 
took to  reduce  the  mass  of  edicts,  Senatus-consulta,  rescripts, 
etc.,  which  had  accumulated  during  the  imperial  period  to  a 
single  code.  The  most  important  efforts  of  this  sort  were 
those  made  by  Theodosius  ( 379-395  a.d.  )  and  Justinian 
(529-534  A.D.).  The  Theodosian  Code  is  important  because 
it  influenced  the  legislation  of  the  first  Teutonic  masters 
within  the  Empire  ;  the  Justinian,  because  it  was  by  far  the 
most  complete  and  scientific  of  the  codes,  and  because  it  has 
been  the  basis  of  subsequent  studies  and  adaptations  of  Roman 
legal  practice  the  world  over.  The  republican  legislation 
and  the  prsetorial  edicts  of  the  period  of  the  Eepublic  had 
received  final  formulation  and  fusion  at  the  hands  of  the 
jurists  by  the  time  the  fourth  century  was  reached ;  all  that 
remained  for  the  emperors  to  do  was  to  digest  the  writings  of 
the  jurists  and  codify  the  later  imperial  constitutions.  The 
Theodosian  Code  went  but  a  very  little  way  in  the  digesting 
of  the  writings  of  the  great  law  writers  ;  the  Justinian  Code, 
however,  which  was  prepared  under  the  direction  of  the  great 
lawyer,  Trebonian,  was  wonderfully  successful  in  all  branches 
of  the  difficult  and  delicate  task  of  codification.  It  consists, 
as  we  have  it,  of  four  distinct  parts  :  1.  The  Pandects  or 
Digest  of  the  scientific  law  literature ;  2.  The  Codex  or  Sum- 
mary of  imperial  legislation;  3.  The  Institutions,  a  general 
review  or  text-book  founded  upon  the  Digest  and  Code,  an 
introductory  restatement,  in  short,  of  the  law ;  and  4.  The 
Novels,  or  new  imperial  legislation  issued  after  the  codification 
to  fill  out  the  gaps  and  cure  the  inconsistencies  discovered  in 
the  course  of  the  work  of  codifying  and  manifest  in  its  pub- 
lished results. 


142  ROiSIAN  DOlSnNION  AND  BOMAN  LAW. 

The  whole  constituted  that  body  of  laws  which  was  to  be 
known  to  the  times  succeeding  the  twelfth  century  as  the 
Corpus  Juris  Civilis,  or  Body  of  the  Civil  Law.  All  law  was 
now  civil  law,  the  law  of  Eome ;  there  was  no  longer  any  neces- 
sary distinction  between  jus  civile  and  jus  gentium. 

216.  The  Corpus  Juris  Civilis  became  at  once  the  law  of 
the  Eastern  Empire,  and  for  a  time  the  law  of  Italy  also.  It 
did  not  dominate  the  legal  developments  of  the  West  outside 
of  Italy,  however,  until  the  Middle  Ages,  for  Justinian  had  his 
capital  at  Constantinople  and  never  controlled  any  important 
part  of  what  had  been  the  western  half  of  the  old  Empire, 
except  Italy,  and  even  Italy  he  united  only  temporarily  and 
precariously  to  his  eastern  dominions.  His  Code  entered 
Europe  to  possess  it  through  the  mediation  of  the  universities 
and  ecclesiastics  of  the  Middle  Ages  (sec.  258). 

217.  The  Completed  Roman  Law :  its  Municipal  Life.  — 
The  body  of  law  thus  completed  by  sagacious  practical  adap- 
tions, careful  philosophical  analysis  and  development,  and  final 
codification  has  furnished  Europe,  not  with  her  political  sys- 
tems, but  with  her  principles  of  private  right.  The  Coj-pus 
Juris  has  been  for  later  times  a  priceless  mine  of  private  law 
(sees.  258-267).  The  political  fruits  of  Eoman  law  —  for  it 
has  had  such  —  are  seen  in  municipal  organization.  Though 
Kome  suffered  the  towns  in  her  provinces  to  retain  their  own 
plans  of  government,  she  of  course  kept  an  eye  upon  the  man- 
agement of  their  affairs,  and  her  influence  and  interest  were 
ever  present  to  modify  all  forms  and  practices  which  did  not 
square  with  her  own  methods.  She  besides  dotted  not  only 
Italy,  but  the  banks  of  the  Ehine  and  other  strategically 
important  portions  of  her  dominions  with  colonies  of  her  own 
citizens,  who  either  built  fortress  towns  where  there  had  before 
been  no  centred  settlement  at  all,  or  sat  themselves  down  in 
some  existing  native  village.  In  both  cases  they  of  course 
imported  Koman  methods  of  city  government.  Everywhere, 
therefore,  native  towns  were  neighbors  to  Roman  municipal 


ROMAN  DOMINION  AND  ROMAN  LAW. 


143 


practice,  and  took  yearly  more  color  of  Koman  political  habit 
from  contact  with  it.  By  the  time  of  the  Teutonic  invasions 
Western  and  Southern  Europe  abounded  in  municipalities  of 
the  strict  Eoman  pattern. 

218.  Diffusion  and  Influence  of  Roman  Private  Law.  — 
But  private  law  was  the  great  gift  of  the  imperial  codes. 
With  the  widening  of  the  citizen  right,  the  private  law  of 
Eome  had  spread  to  every  province  of  the  Empire.  As  it 
spread,  it  had  been  generalized  to  meet  all  the  varied  needs 
and  circumstances  of  infinitely  various  populations,  to  fit  all 
the  trade  and  property  relations  of  the  vast  Roman  world, 
until  it  had  become,  as  nearly  as  might  be,  of  universal  use 
and  acceptability.  It  made  wide  and  scientific  provision  for 
the  establishment,  recognition,  and  enforcement  of  individual 
rights  and  contract  duties.  It  was  incomparably  more  many- 
sided  and  adequate  than  anything  the  barbarian  who  disturbed 
for  a  time  its  supremacy  could  invent  for  himself :  and  it 
proved  to  have  anticipated  almost  every  legal  need  he  was  to 
feel  in  all  but  the  last  stages  of  his  civil  development.  It  was 
to  be  to  him  an  exhaustless  mine  of  suggestion  at  least,  if  not 
a  definite  store  of  readj'-made  law. 

219.  Roman  Legal  Dominion  in  the  Fifth  Century.  —  The 
invading  hosts  who  came  from  across  the  Ehine  in  the  fifth 
century  of  our  era  found  Roman  law  and  institutions  every- 
where in  possession  of  the  lands  they  conquered.  Everywhere 
there  were  towns  of  the  Roman  pattern,  and  populations  more 
or  less  completely  under  the  dominion  of  Roman  legal  concep- 
tions and  practices.  Their  dealings  with  these  institutions, 
the  action  and  reaction  upon  one  another  of  Roman  law  and 
Teutonic  habit,  constitute  in  no  small  part  the  history  of  gov- 
ernment in  the  Middle  Ages. 

220.  Influence  of  Mosaic  Institutions.  —  It  would  be  a  mistake, 
however,  to  ascribe  to  Roman  legal  conceptions  an  undivided  sway  over 
the  development  of  law  and  institutions  during  the  Middle  Ages.  The 
Teuton  came  under  the  influence,  not  of  Rome  only,  but  also  of  Chris- 


144 


KOMAN  D0ML5n:0N  AND  ROMAN  LAW. 


tianity ;  and  through  the  Church  there  entered  into  Europe  a  potent 
leaven  of  Judaic  thought.  The  laws  of  Moses  as  well  as  the  laws  of 
Rome  contributed  suggestion  and  impulse  to  the  men  and  institutions 
which  were  to  prepare  the  modern  world ;  and  if  we  could  but  have  the 
eyes  to  see  the  subtle  elements  of  thought  which  constitute  the  gross 
substance  of  our  present  habit,  both  as  regards  the  sphere  of  private 
life,  and  as  regards  the  action  of  the  state,  we  should  easily  discover 
how  very  much  besides  religion  we  owe  to  the  Jew. 


Eepresextatiye  Authorities. 

For  the  texts  of  Roman  law,  see 

Corpus  Juris  Civilis,  edited  by  Kriiger,  Mommsen,  and  the  bros.  Krie- 

gelli.   3  vols.   Berlin  and  Leipsic,  1872-1875. 
Bruns,  C.  J.,  Pontes  Juris  Romani  Antiqui.    Tiibingen,  1872.  Fifth 

(improved)  edition  by  Mommsen.  Freiburg,  1887. 
Huschke,  Jurisprudentia  Antejustiniana.    Leipsic,  1879. 

For  commentary  and  exposition,  see 

Holland,  T.  E.  (editor),  "Institutes  of  Justinian." 

Posie  (translator),  Gaii  "  Institutionum  Juris  Civilis." 

Hadley,  Jas.,  "Introduction  to  Roman  Law."        Y.,  1880. 

Morey,  W.  C,  "Outlines  of  Roman  Law,"  and  duthoi'ities  there  cited. 

N.  Y.,  1885.  An  excellent  manual  of  which  I  have  made  much  use. 
Muirhead,  Jas.,  "  Historical  Introduction  to  the  Private  Law  of  Rome." 

Edinburgh,  1886. 

Amos,  Sheldon,  "History  and  Principles  of  the  Civil  Law  of  Rome." 
Mackeldy,  F.,  "  Lehrbuch  der  Institutionen  des  heutigen  Romische 

Rechts."  Giessen,  1814.  Translations,  X.  Y.,  1845 ;  Phila.,  1883. 
Ihering,  R.  v.,  "  Geist  des  rbmischen  Rechts."    Of  this  work  there  is 

a  French  translation. 

For  special  expositions  of  the  historical  development  of  Roman 
Law,  see 

Phillimore,  Jno.  G.,  "Introduction  to  the  Study  and  History  of  Roman 
Law."    London,  1848. 


ROMAN  DOMINION  AND  ROMAN  LAW. 


145 


Rivier,  Alphonse,  "  Introduction  historique  au  droit  Romain."  Brus- 
sels, 1881. 

Clark,  E.  C,  "Early  Roman  Law.   Regal  Period."    London,  1872. 
Monimsen,  Theodor,  "History  of  Rome,"  passim,  and  *' Romische 

Staatsrecht."   2  vols. 
Puchta,  "  Kursus  der  Institutionen,"  1841 ;  ninth  edition  by  Krtiger, 

2  vols.,  1881. 

Walter,  "  Geschichte  des  Romischen  Rechts."  2  vols?,  3  eds.  1840- 
1860. 

Savigny,  F.  K.  v.,  "  Geschichte  des  Romischen  Rechts  in  Mittelalter." 
Heidelberg,  1815-1831.  French  translation,  1839.  English  trans- 
lation of  Vol.  I.,  Edinburgh,  1829. 

Meyer,  J.  D.,  "Esprit,  Origme,  et  Progres  des  Institutiones  Judiciaire 
des  Principaux  Pays  de  I'Eui-ope."  Paris,  1823. 

For  comparisons  of  Roman  law  with  several  modern  systems,  see 

Mackenzie,  Lord,  "  Studies  in  Roman  Law,  with  Comparative  Views 
of  the  Laws  of  France,  England,  and  Scotland."  Thii'd  edition, 
1870. 

Reeves,  Jno.,  "  History  of  the  English  Law,  from  the  Time  of  the 
Romans  to  the  End  of  the  Reign  of  Elizabeth.  With  an  Intro- 
ductory Dissertation  on  the  Nature  and  Use  of  Legal  History,  the 
Rise  and  Progress  of  Our  Laws,  and  the  Influence  of  the  Roman 
Law  on  the  Formation  of  Our  Own,"  by  W.  A.  Finlason.  Lon- 
don, 1869. 

Williams,  Jas.,  "  The  Institutes  of  Justinian  illustrated  by  English 
Law."   London,  1883. 

Scrutton,  T.  E.,  "Influence  of  the  Roman  Law  on  the  Law  of  Eng- 
land." Camb.  Univ.  Press,  1885. 

Schmidt,  "  Der  prinzipielle  Unterschied  zwischen  der  Romischen  und 
Germanischen  Rechte."  1853. 

Hahn,  "Die  materielle  Uebereinstimmung  der  Romischen  und  Ger- 
manischen Rechtsprinzipien."  1856. 

Concerning  the  general  institutional  significance  of  Roman  law, 
see 

Seeley,  J.  R.,  "Roman  Imperialism." 
Bryce,  Jas.,  "  The  Holy  Roman  Empire." 


146 


ROMAN  DOMINION  AND  ROMAN  LAW. 


Maine,  Sir  H.  S.,  "Ancient  Law,"  "Early  Law  and  Custom,"  and 
"Early  History  of  Institutions." 

Austin,  Jno.,  "Lectures  on  Jurisprudence,  or  the  Philosophy  of  Posi- 
tive Law."  2  vols.   London,  1873. 

On  special  points  reference  may  always  be  profitably  made  to 
Smith,  Dr.  W.,  "  Dictionary  of  Greek  and  Roman  Antiquities.'' 


\ 

\ 


V. 

TEUTONIC  POLITY  AXD  G0\T:ENMENT  DUEING 
THE  MIDDLE  AGES. 

 ooXXoc  

221.  Contact  of  the  Teutonic  Tribes  with  Rome.  — The 

Teutonic  tribes  which,  in  the  fifth  and  following  centuries, 
threw  themselves  into  the  Western  Eoman  Empire  to  possess 
it  were  not  all  of  them  strangers  to  the  polity  which  they 
overset.  The  Komans  had  often  invaded  Germany,  and,  al- 
though as  often  thrust  out,  had  established  a  supremacy  over 
the  minds  at  least,  if  not  over  the  liberties,  of  the  Germans. 
Those  tribes  which  had  lived  nearest  the  Ehine  and  the 
Danube,  moreover,  had  long  been  in  more  or  less  constant  con- 
tact with  the  masters  of  the  Mediterranean  and  the  western 
world,  and  had,  of  course,  been  deeply  affected  by  the  example 
of  Roman  civilization.  Teutons  had,  besides,  entered  and,  so 
to  say,  espoused  the  Eoman  world  in  great  numbers,  in  search 
of  individual  adventure  or  advantage,  long  before  the  advent 
of  the  barbarians  as  armed  and  emigrant  hosts.  Eome  had 
drawn  some  of  her  finest  legions  from  these  great  races  which 
she  could  not  subdue.  Her  armies  were  in  the  later  days  of 
the  Empire  full  of  stalwart,  fair-haired  Germans. 

222.  Primitive  Teutonic  Institutions. — When  Franks  and 
Goths  and  Burgundians  moved  as  militant  races  to  the  sup- 
planting of  Eoman  dominion,  they,  nevertheless,  took  with 
them  into  Western  Europe,  torn  as  it  was  by  Eoman  dissensions 
and  sapped  by  Eoman  decay,  a  fresh,  unspoiled  individuality 
of  their  own.  They  had  their  own  original  contribution  to 
make  to  the  history  of  institutions.    Hitherto  they  had  lived 


148 


TEUTONIC  POLITY  AND  GOVERNMENT 


under  a  system  of  government  combining  with  singular  com- 
pleteness, though  in  somewhat  crude  forms,  tribal  unity  and 
individual,  or  at  least  family,  independence.  Amongst  them, 
as  amongst  other  Aryan  peoples,  kinship  constituted  the  basis 
of  association  and  primal  sanction  of  authority ;  and  the 
family  was  the  unit  of  government.  Kinsmen,  fellow-tribes- 
men, were  grouped  in  villages,  and  each  village  maintained 
without  question  its  privileges  of  self-government,  legislating 
upon  its  common  affairs  and  administering  its  common  prop- 
erty in  village-meeting.  Its  lands  were  the  property,  not  of 
individuals,  but  of  the  community ;  but  they  were  allotted  in 
separate  parcels  to  the  freemen  of  the  community,  upon  would- 
be  equitable  principles,  to  be  cultivated  for  private,  not  for 
communal,  profit.  Chiefs  there  were  who  exercised  magis- 
terial powers,  but  these  chiefs  were  elected  in  village-meeting. 
They  did  not  determine  the  weightier  questions  of  custom,  in 
the  administration  of  justice :  that  was  the  province  of  the 
village-meeting  itself;  and  such  judicial  authority  as  they 
did  exercise  was  shared  by  ^  assessors '  chosen  from  the  whole 
body  of  their  free  fellow-villagers. 

223.  Free,  Unfree,  and  Noble.— Xot  all  their  fellow- 
villagers  were  free.  There  were  some  who  were  excluded 
from  political  privilege  and  who  held  their  lands  only  as  serfs 
of  the  free  men  of  the  community ;  and  there  were  others 
who  were  lower  still  in  rank,  who  were  simple  slaves.  There 
were,  again,  on  the  other  hand,  some  who  were  more  than  free, 
who,  for  one  reason  or  another,  had  risen  to  a  recognized 
nobility  of  station,  to  a  position  of  esteem  and  to  an  estate 
of  wealth  above  those  of  the  rest  of  the  community.  But 
nobility  did  not  carry  with  it  exceptional  political  privilege : 
it  only  assured  a  consideration  which  put  its  possessor  in  the 
way  of  winning  the  greater  preferments  of  office  in  the  gift 
of  the  village-meeting.  The  power  of  the  noble  depended 
upon  the  franchises  of  his  community  rather  than  upon  any 
virtue  in  his  own  blood. 


DURING  THE  MIDDLE  AGES. 


149 


224.  Inter-communal  Government.  —  It  was  not  often  that 
a  village  stood  apart  in  entire  dissociation  from  all  similar 
tribal  or  family  centres ;  but  when  it  did,  the  powers  of  its 
moot  (meeting)  extended  beyond  the  choice  of  magistrates, 
the  management  of  the  communal  property,  and  the  adminis- 
tration of  communal  justice.  It  also  declared  war  and  ap- 
pointed leaders  of  the  communal  'host.'  Commonly,  how- 
ever, these  greater  matters  of  war  and  of  '  foreign  relations ' 
were  determined  by  assemblies  representing  more  than  one 
village.  Communities  sent  out  offshoots  which  remained  con- 
nected with  them  by  federal  bonds  ;  or  independent  communi- 
ties drew  together  into  leagues ;  and  it  was  the  grand  folk-moot 
of  the  confederated  communities  which  summoned  the  '  host ' 
and  elected  leaders,  —  which  even  chose  the  chiefs  who  were 
to  preside  over  the  administration  of  the  several  villages. 

225.  Military  Leadership  :  the  Comitatus.  —  The  leaders 
selected  to  head  the  'host'  were  generally  men  of  tried 
powers  who  could  inspire  confidence  and  kindle  emulation  in 
their  followers ;  and  such  men,  though  chosen  to  ofiicial  leader- 
ship always  only  for  a  single  campaign,  never  even  in  times  of 
peace  ceased  to  be,  potentially  at  least,  the  heads  of  military 
enterprise  and  daring  adventure.  Not  uncommonly  they  would 
break  the  monotony  of  peace  and  dull  inactivity  by  gathering 
about  them  a  band  of  volunteers  and  setting  forth,  spite  of  the 
peace  enjoyed  by  their  tribe,  to  make  fighting  or  find  plunder 
somewhere  for  their  own  sakes.  About  men  of  this  stamp 
there  gathered  generally  all  the  young  blades  of  the  tribe  who 
thirsted  for  excitement  or  adventure,  or  who  aspired  to  gain 
proficiency  in  arms.  These  became  the  military  household, 
the  comitatus,  of  their  chosen  chieftain,  his  permanent,  insep- 
arable retinue,  bound  to  him  by  the  closest  ties  of  personal 
allegiance,  sitting  always  at  his  table,  and  at  once  defending  his 
person  and  emulating  his  prowess  in  battle ;  a  band  who  looked 
to  him  for  their  sustenance,  their  military  equipment,  and  their 
rewards  for  valor,  but  who  rendered  him  in  return  a  gallant 


150 


TEUTONIC  POLITY  AND  GOVERNMENT 


service  which,  added  much  to  his  social  consideration  and  gave 
him  rank  among  the  most  powerful  of  his  fellow-tribesmen. 

226.  Contrasts  between  the  Teutonic  System  and  the 
Roman.  —  These  features  of  tribal  confederation  and  personal 
supremacy,  though  suggestive  at  many  points  of  the  primitive 
Roman  state,  were  in  strong  contrast  with  the  Roman  polity 
as  it  existed  at  the  time  of  the  invasions.  They  were  not  only 
more  primitive  and  so  indicative  of  a  very  much  less  advanced 
stage  of  civilization,  but  they  also  contained  certain  principles 
which  were  in  radical  contradiction  to  some  of  the  conceptions 
most  fundamental  to  Roman  state  life. 

227.  Roman  Allegiance  to  the  State. — The  central  con- 
trast between  the  two  systems  may  be  roughly  summed  up  in 
the  statement  that  the  Teutonic  was  essentially  personal,  the 
Roman  essentially  impersonal.  !N"either  the  Roman  soldier  nor 
the  Roman  citizen  knew  anything  of  the  personal  allegiance 
which  was  the  chief  amalgam  of  primitive  German  politics. 
His  subordination  was  to  the  state,  and  that  subordination  was 
so  complete  that,  as  I  have  previously  said,  he  was  practically 
merged  in  the  state,  possessing  no  rights  but  those  of  a  child 
of  the  body  politic.  His  obligation  to  obey  the  magistrate  in 
the  city  or  his  commander  in  the  field  lasted  only  so  long  as 
the  magistrate's  or  commander's  commission  lasted.  Alle- 
giance had  no  connection  with  the  magistrate  or  the  commander 
as  a  person  :  magistrate  and  commander  claimed  allegiance  only 
as  representatives  of  the  state,  its  temporary  embodiment.  To 
them,  as  the  state,  the  citizen  or  soldier  owed  the  yielding  of 
everything,  even  of  life  itself :  for  as  against  the  state  the 
Roman  had  no  private  rights.  While  he  held  office,  therefore, 
magistrate  or  commander  was  omnipotent ;  his  official  conduct 
could  be  called  in  question  only  after  his  term  of  office  was  at 
an  end  and  he  had  ceased  to  be  the  state's  self.  Of  course 
much  decay  had  come  into  the  heart  of  such  principles  ere 
the  Empire  was  forced  to  break  before  the  barbarian  ;  but  they 
never  ceased  to  be  central  to  Roman  political  conception. 


DURING  THE  MIDDLE  AGES. 


151 


228.  Teutonic  Personal  Allegiance.  —  With  the  Teutons, 
on  the  contrary,  political  association  manifested  an  irresistible 
tendency  towards  just  the  opposite  principles.  When  they 
came  to  their  final  triumph  over  the  Empire  they  came  ranked 
and  associated  upon  grounds  of  personal  allegiance.  In  their 
old  life  in  Germany,  as  we  have  seen  (sec.  225),  their  relations 
to  their  commanders  did  not  cease  at  the  close  of  a  war  sanc- 
tioned by  the  community,  though  the  commission  of  their  lead- 
ers did  expire  then.  Many  —  and  those  the  bravest  and  best 
—  remained  members  of  their  leader's  comitatus,  bound  to  him 
by  no  public  command  or  sanction  at  all,  but  only  by  his  per- 
sonal supremacy  over  them.  They  even  made  themselves  mem- 
bers of  his  household,  depended  upon  the  bounties  of  his  favor, 
and  constituted  themselves  a  personal  following  of  their  chosen 
leader  such  as  no  Eoman  but  a  fawning  client  would  have 
deigned  to  belong  to.  It  was  a  polity  of  individualism  which 
presented  many  striking  points  of  surprise  to  Eoman  observers. 
Individuals  had  under  such  a  system  a  freedom  of  origination 
and  a  separateness  of  unofficial  personal  weight  which  to  the 
Roman  were  altogether  singular  and  in  large  part  repugnant. 

229.  Temporary  Coexistence  of  the  Two  Systems. — For 
the  first  two  or  three  centuries  of  the  Teutonic  dominion  over 
the  Romanized  populations  of  their  new  territories  Teutonic 
and  Roman  institutions  lived  side  by  side,  each  set  persistent 
for  its  own  people.  The  Germans  did  not  try  to  eradicate 
either  the  old  population  or  the  old  laws  of  the  Empire.  They 
simply  carried  into  the  midst  of  the  Empire  their  own  customs, 
which  they  kept  for  themselves,  without  thrusting  them  upon 
their  new  subjects.  They  appropriated  to  their  own  uses  large 
tracts  of  its  lands,  either  casting  out  those  who  already  occu- 
pied them  or  reducing  the  occupiers  to  a  servile  condition ;  but 
leaving  much  of  the  land  untouched,  to  be  occupied  as  before. 
Of  course  Teutonic  customs,  being  the  customs  of  the  dominant 
race,  more  and  more  affected  the  older  Roman  rights,  even  if 
only  insensibly  ;  and  Roman  principles  of  right,  belonging  as 


152 


TEUTONIC  POLITY  AND  GOVERNMENT 


they  did  to  a  mucli  superior  and  much  more  highly  developed 
civilization^  which  the  Teuton  had  already  long  reverenced, 
must  have  had  quite  as  great  a  modifying  effect  upon  the 
Teutonic  customs,  which  now,  so  to  say,  lay  alongside  of  them. 
The  Roman  polity  had  entered  into  the  whole  habit  of  the  pro- 
vincials and  still  retained,  despite  the  disorders  of  the  later 
days  of  the  Empire,  not  a  little  of  its  old  vigor  and  potency. 
It  had  strongly  affected  the  imaginations  of  the  Germans  when 
they  had  touched  only  its  geographical  borders,  and  it  did  not 
fail  in  a  certain  measure  to  dominate  them  even  now,  when  it 
was  at  their  feet.  They  made  no  attempt  to  stamp  it  out. 
They,  on  the  contrary,  tolerated,  respected,  imitated  it. 

230.  Relative  Influence  of  the  Two  Systems.  —  So  far  as 
any  general  description  of  this  mixture  of  Roman  and  Teutonic 
influences  may  be  ventured,  it  may  be  said  that  the  Teutonic 
had  their  greatest  weight  on  the  side  of  political  organization, 
the  Roman  on  the  side  of  the  development  of  private  rights. 
The  Teutons,  of  course,  tried  to  reproduce  in  their  new  settle- 
ments the  communal  life  peculiar  to  their  own  native  institu- 
tions ;  they  endeavored  to  organize  their  own  power,  according 
to  the  immemorial  fashion  of  their  own  politics,  on  the  basis 
of  a  freehold  tenure  of  the  land  and  local  self-administration,  — 
a  free  division  of  the  spoils  on  the  ground  of  individual  equality 
among  the  freemen  of  the  tribes.  They  had  stamped  out  the 
Roman  state  in  the  invaded  territory ;  Roman  public  law  they 
had  of  course  displaced,  destroyed.  It  was  Roman  conceptions 
as  to  private  relations  that  gradually  modified  their  Teutonic 
system.  That  system  rested,  as  regarded  its  political  features 
hardly  less  than  at  all  other  points,  upon  the  relations  of 
individual  to  individual,  and  as  the  example  of  the  Roman 
practices,  still  preserved  by  the  conquered  populations  about 
them,  modified  these  relations  of  individual  to  individual,  great 
changes  were  by  consequence  inevitably  wrought  in  political 
organization  as  well.  Such  changes  were,  however,  not  in  the 
direction  of  a  reproduction,  of  Roman  political  method,  but  in 


DURING  THE  MIDDLE  AGES. 


153 


the  direction  of  the  creation  of  that  singular  public  polity  which 
we  designate  as  mediceval. 

231.  Roman  Influence  upon  Private  Law.  —  The  Eoman 
influence  exerted  itself  most  directly  and  most  powerfully,  then, 
through  the  medium  of  Roman  Private  Law.  That  law  had 
developed  too  perfect  and  complete  a  system  of  private  rights 
to  fail  of  acceptance  at  the  hands  of  the  new  organizers.  The 
Teutonic  leaders  were,  moreover,  prepared  to  admire  and  heed 
Roman  civil  arrangements.  Accordingly  the  sixth  century  has 
scarcely  opened  before  we  find  Alaric  IL,  king  of  the  West 
Goths  (506  A.D.),  and  Sigismund,  king  of  the  Burgundians 
(517  A.D.),  compiling,  from  the  code  of  Theodosius  and  the 
Avritings  of  Gains  and  Paulus,  compends  of  Roman  law  for 
the  use  of  their  Roman  subjects.  Even  in  the  north  of  Gaul, 
in  the  districts  which  had  been  somewhat  remote  from  the 
Roman  influence,  the  Franks  were  constrained,  while  rejecting 
Roman  law  for  themselves,  to  suffer  it  to  retain  its  validity  for 
their  Gallic  subjects.  The  result  was  the  rise  in  Xorthern 
Gaul  of  a  curious  and  anomalous  system  of  ^personal  law.' 
There  was  one  law  for  the  Gaul,  another  for  the  Prank.  Even 
as  between  Prank  and  Prank  there  was  a  difference  of  law. 
The  Salian  Prank  was  not  judged  by  the  same  rules  as  those 
which  bound  the  Ripuarian  Prank,  but  for  each  there  was  a 
law  of  his  own.  Sometimes,  in  a  suit,  it  was  the  plaintiff, 
sometimes  the  defendant,  who  established  a  right  imder  his 
personal  law.  Even  Charles  the  Great  did  not  stamp  out  these 
confusing  practices,  though  he  sought  to  give  Roman  law  anew 
to  his  empire  through  a  fresh  issue  of  the  code  of  Alaric. 

232.  Roman  Towns.  — It  was  in  the  towns  that  the  law  of 
Rome  had  its  strongholds.  There  it  had  a  centred  and  lively 
influence  :  and  there  it  was  long  undisturbed  by  the  conquerors. 
It  took  the  Teuton  a  long  time  to  learn  how  to  live  in  a  town, 
within  limiting  walls  and  amidst  crowded  houses.  His  native 
habit  called  him  to  a  freer  life  :  the  pent-up  town  was  too  rigid, 
too  conventional,  too  narrow  a  sphere  for  his  restless  energies. 


154 


TEUTONIC  POLITY  AND  GOVERNMENT 


He  at  first  contented  himself,  therefore,  with  the  mere  formal 
submission  of  the  towns :  it  was  long  before  he  entered  them 
to  stay  and  to  take  part  in  their  life.  Meanwhile  not  only 
Koman  private  law,  but  also  Eoman  municipal  traditions,  were 
preparing  the  cities  for  the  power  and  independence  which 
they  were  to  claim  and  enjoy  during  the  Middle  Ages.  They 
were  to  prove  Kome's  most  vital  fragments.  They  nursed  her 
law  and  reproduced  her  politics.  Not  Italy  only,  but  the 
Khone  and  Rhine  countries  as  well,  were  dotted  over  with 
these  abiding-places  of  the  old  influences  which  had  once  domi- 
nated the  world :  and  from  them  those  influences  were  eventu- 
ally to  issue  forth  again  to  fresh  triumphs. 

233.  The  Fusion  of  the  Two  Systems.  —  Gradually  there 
was  brought  about  that  fusion  of  German  customs  with  Eoman 
law  and  conception  which,  after  a  long  intermediate  fermen- 
tation, was  to  produce  the  conditions  of  modern  political  life. 
During  the  Middle  Ages  government  gradually  worked  its  way 
out  from  the  individualism  inherent  in  the  habits  of  the  Ger- 
manic races  back  into  an  absolutism  not  unlike  that  of  the 
Roman  Empire.    The  intermediate  stage  was  Feudalism. 

234.  Effects  of  Movements  of  Conquest  upon  Teutonic 
Institutions.  —  Feudalism  was  preceded,  hoAvever,  by  modifi- 
cations in  the  Teutonic  system  which  were  not  the  result  of 
their  contact  with  Romanized  peoples,  but  the  direct  effects 
of  conquest. 

235.  (1)  The  New  Kingship.  —  The  migratory  conquests 
of  the  Teutons  greatly  emphasized  for  a  time  the  j^rinciple  of 
individualism,  —  the  principle  of  personal  allegiance.  They 
advanced  to  their  new  seats  not  as  separate  marauding  bands, 
but  as  emigrant  nations.  It  was  a  movement  of  races,  not  of 
armies  merely.  All  the  freemen  of  the  tribes  came,  bringing 
with  them  their  families,  their  household  goods,  and  their 
slaves,  as  having  come  to  stay.  But  they  could  not  preserve, 
when  on  such  an  errand,  the  organization  of  times  of  settlement 
and  peace.    They  were  forced  to  elevate  the  commander  of  the 


DURING  THE  MIDDLE  AGES. 


155 


host  to  a  new  kingship.  As  confederated  tribes  in  their  old 
seats  they  had  often  chosen  kings,  who  typified  in  their  official 
dignity  and  sanctity  the  unity  of  tribal  organization,  who  pre- 
sided over  the  national  councils,  and  who  by  reason  uf  their 
preferred  position  enjoyed  a  somewhat  greater  state  than  their 
noble  associates  in  the  tribes.  But  these  early  kings,  like  the 
Greek  kings  of  the  Homeric  songs,  were  scarcely  more  than 
patriarchal  presidents,  ^  first  among  peers.'  The  later  kings, 
in  Gaul,  in  England,  and  in  Spain,  —  the  kings  of  the  emigra- 
tion, —  on  the  other  hand,  ruled  as  well  as  reigned.  They  had 
first  of  all  been  the  leaders  who  commanded  the  invading  hosts, 
and  who  had  met  and  routed  the  Komau  forces  who  would  have 
withstood  the  stalwart  immigrants  ;  and  so  long  as  conquests 
remained  incomplete,  the}"  continued  in  command  to  complete 
them.  Conquest  being  achieved,  their  authority  was  still  nec- 
essary to  keep  their  people  together  in  dominant  organization. 
It  was  only  the  logical  and  inevitable  result  that  was  reached, 
therefore,  when  they  became  possessed  of  sovereign  powers  of 
a  sort  such  as  German  politics  had  never  known  before. 

But,  great  as  was  the  almost  immediate  transformation  of 
commanders  into  kings,  they  were  not  yet  kings  such  as  later 
times  were  to  see  in  France,  after  feudalism  should  have 
worked  its  perfect  work. 

236.  (2)  The  Modified  Land  Tenure. —The  invading  peo- 
ples doubtless  at  first  took  possession  of  the  conquered  terri- 
tory by  a  tenure  not  radically  different  from  that  by  which 
they  had  held  their  older  home  fields,  except  as  it  was  modi- 
fied by  the  fact  that  the  conquered  lands  were  already  occu- 
pied by  a  native  population,  whom  it  was  not  their  policy 
altogether  to  dispossess,  and  whose  presence  even  as  serfs 
would  necessarily  affect  the  system  of  the  new  masters.  Those 
who  were  suffered  to  retain  their  holdings  only  exchanged  a 
Roman  overlordship  for  a  German ;  but  they  constituted  a  new 
class  of  citizens  in  the  German  polity,  and,  of  course,  touched 
with  Roman  influences  Teutonic  customs  of  tenure. 


156 


TEUTONIC  POLITY  AND  GOVERNMENT 


237.  It  was  the  circumstances  of  conquest,  however,  which 
were  the  chief  causes  of  modification.  The  conquered  terri- 
tory was  naturally  disposed  of,  in  large  part  at  least,  by  the 
leaders  of  conquest  in  accordance  with  military  and  strategic 
requirements.  Such  leaders,  too,  always  get  the  lion's  share 
of  property  won,  as  these  lands  had  been,  by  arms ;  and,  by 
their  gifts,  their  chief  followers  also  are  made  specially  rich  in 
the  new  lands.  Thus  a  new  bond  of  personal  connection  is 
created,  and  conditions  pregnant  with  profound  social  changes 
are  established.  It  was  by  means  of  such  gifts  and  their  in- 
fluence that  the  leaders  of  conquest  raised  up  about  them  pro- 
prietors all  but  as  powerful  as  themselves,  and  so  both  cheated 
themselves  of  full  kingship,  and  'robbed  society  of  all  chance 
of  harmonious  unity.  Power  fell  apart  into  fragments,  — 
into  a  vast  number  of  petty  lordships,  and  the  Feudal  System 
Avas  born. 

238.  The  Feudal  System.  —  Feudalism  is  the  name  given 
to  that  stage  of  growth  through  which  Teutonic  institutions 
passed  while  accommodating  themselves  to  new  rootage  in 
Koman  territory  and  to  the  new  conditions  created  by  race 
migrations  and  conquests.  It  was,  in  its  highest  development, 
a  system  of  parcelled  lordship  and  divided  authority,  based 
not  upon  general  political  law,  but  upon  property  in  land. 
The  two  chief  constituent  forces  of  this  new  system  were 
'  commendation '  and  the  '  benefice.'  A  ^  benefice '  was  a  landed 
estate  held  upon  conditions  of  service  to  some  superior,  the  real 
or  feigned  giver  of  the  estate.  '  Commendation '  was  a  cere- 
mony by  which  a  similar  obligation  of  personal  fealty  towards 
a  superior  was  created,  whether  land  was  held  by  his  gift  or  not. 
The  result  of  both  was  to  create  a  series  of  personal  depend- 
encies :  a  connected  series  of  greater  and  lesser  landowners, 
the  less  dependent  on  the  greater,  and  all  at  least  nominally  de- 
pendent on  a  king,  the  centre  and  titular  head  of  the  hierarchy. 

239.  Local  Differences  in  Feudal  Development.  —  There 
was,  of  course,  not  exactly  the  same  method  of  development 


DURING  THE  MIDDLE  AGES. 


157 


everywhere.  In  England,  under  the  Saxons,  and  afterwards 
under  their  cousin  Danes,  the  new  polity  was  held  together 
primarily  and  principally  by  that  old  cement  of  personal  alle- 
giance, the  relations  of  leader  and  comitatus  (sees.  225,  228)  ; 
in  France,  and  elsewhere  on  the  continent,  it  was  generated 
more  directly  by  territorial  connections  independent  of  leader- 
ship and  following.  In  the  one  case  men  owned  land  and  pos- 
sessed power  because  of  their  personal  relations  with  the  king ; 
in  the  other,  they  stood  in  special  personal  relations  to  the  king 
because  they  owned  land  of  which  circumstances  had  made  him 
titular  overlord.  Speaking  generally,  so  as  to  include  both 
France  and  England,  it  may  be  said  that  the  benefice  was  of 
two  kinds.  The  English  benefices  were  most  often  estates 
granted  by  the  king  to  his  personal  following,  to  his  comiteSj 
or  to  his  less  independent  adherents,  on  condition  that  they 
should  hold  themselves  ever  ready  to  render  him  full  aid  and 
service,  and  ever  continue  to  adhere  to  him  with  special  fidel- 
ity. The  French  benefices  were  more  generally  estates  origi- 
nally allodial  (that  is,  held  under  no  one,  but  by  an  independent 
title),  which  had  been  surrendered  to  the  king,  or  to  some  other 
lord  of  the  new  hierarchy,  to  be  received  back  again  as  his  gift, 
for  the  sake  of  the  mutual  obligations  of  faith  and  support  thus 
established.  Of  course  it  is  not  to  be  understood  that  bene- 
fices were  exclusively  of  the  one  kind  in  England,  and  exclu- 
sively of  the  other  kind  in  France.  In  France  such  estates 
were  very  often  direct  gifts  from  the  king  or  another  superior ; 
and  in  England  they  were  as  often  surrendered  freeholds  not 
rewarding  gifts.  But  each  country  had  its  predominant  type 
of  the  benefice.  Its  common  mark  everywhere  was  that  it  was 
a  landed  estate ;  not  an  office  or  any  other  gift,  but  land  held 
upon  conditions  of  fealty  to  a  superior. 

240.  Commendation,  on  the  other  hand,  had  no  necessary 
connection  with  land.  Its  predominant  feature  was  a  personal 
relationship  which  was  rather  that  of  master  and  man  than 
that  of  landlord  and  tenant.     It  seems  to  have  been  made 


158  TEUTONIC  POLITY  AND  GOVERNMENT 


necessary  by  the  creation  of  benefices.  As  great  properties 
grew  up  about  them,  as  they  became  encompassed  by  the  great 
network  of  connected  estates  woven  out  of  the  principle  of 
the  benefice,  small  landholders  found  it  necessary  to  avoid 
collision  with  the  growing  power  of  their  princely  neighbors 
by  throwing  themselves  into  the  arms  of  that  power,  by 
hastening  to  conform  and  make  of  their  own  holdings  benefices 
held  of  the  lord  of  the  greatest  contiguous  manor,  and  as 
society  fell  thus  into  regular  gradations  of  personal  allegiance 
based  upon  property,  the  free  man  who  was  without  property 
and  the  native  of  the  conquered  territory  who  found  himself 
suffered  to  have  liberty  but  not  to  hold  land  by  any  such  ten- 
ure as  would  enable  him  to  become  a  '  beneficiary,^  were  both 
left  without  a  place  in  the  new  social  order.  Owing  no  defi- 
nite service  to  the  powerful  persons  about  them,  they  could 
claim  no  protection  from  them.  They  could  be  oppressed 
without  remedy.  They  were  driven,  therefore,  to  'commend^ 
themselves  to  some  lord  who  could  afford  them  security  — 
such  security  at  least  as  the  times  permitted  —  in  return  for 
fealty.  This  was  'commendation.'  It  had,  as  I  have  said, 
no  necessary  connection  with  the  land,  though  the  small  owner 
as  well  as  the  landless  person  probably  became  his  lord's 
^man'  rather  by  commendation  than  by  benefice.  It  became 
a  universally  recognized  maxim  of  law  that  'every  man  must 
have  his  lord.'  Whether  through  benefice  or  through  com- 
mendation, he  must  fall  into  definite  place  in  the  minutely 
assorted  and  classified  society  of  feudalism. 

241.  Political  Disintegration. — The  state  was  thus  disin- 
tegrated. It  no  longer  acted  as  a  whole,  but  in  semi-inde- 
pendent parts.  There  was  no  longer  any  central  authority 
which  acted  directly  upon  all  individuals  alike  throughout  a 
common  territory.  The  king  controlled  directly,  as  he  had 
the  power,  only  the  greater  lords,  who  were  in  feudal  theory 
his  immediate  vassals  ;  other  men,  lower  down  in  the  series, 
could  be  reached  from  above  only  through  their  immediate 


DURING  THE  MIDDLE  AGES. 


159 


masters.  Authority  filtered  down  to  the  lower  grades  of 
society  through  the  higher.  It  was  a  system,  not  of  general 
obedience  to  a  common  law,  but  of  personal  obedience  and 
subordination  founded  upon  land-ownership. 

242.  Such,  then,  was  the  Feudal  System.  The  king  had  no 
immediate  subjects  except  the  greater  barons  and  the  vassals 
on  his  own  baronial  estates,  and  the  greater  barons  were  obedi- 
ent subjects  only  when  he  had  armed  power  sufficient  to  com- 
pel them  to  obey.  Their  vassals  served  the  king  only  when 
they  themselves  did,  and  because  they  did,  arming  themselves 
for  the  king,  as  they  would  arm  themselves  against  him,  only 
as  their  lords  commanded.  In  brief,  every  baron  was  himself 
practically  king  of  those  holding  under  him.  It  was  his  decree 
that  sent  them  into  the  field ;  it  was  his  power  that  defended 
them  against  other  lords  who  would  have  oppressed  or  plun- 
dered them ;  and  it  was  in  his  courts  that  justice  was  admin- 
istered between  them.  His  strength  and  favor  were  their 
shield  and  title.  Law  indeed  grew  up  in  the  shape  of  custom ; 
but  the  customs  of  one  barony  differed  from  those  of  another. 
Except  in  so  far  as  the  priest  and  the  lawyer  revived,  in  their 
advice  to  the  magnates  who  consulted  them,  the  principles  of 
the  Roman  law,  still  alive  to  the  studies  even  of  that  time,  no 
uniformity  of  practice  prepared  a  unified  system  of  law  for 
the  realm.  It  was  an  arrangement  of  governments  within 
governments,  a  loosely  confederated  group  of  inharmonious 
petty  kingdoms. 

243.  The  Feudal  Conception  of  Sovereignty.  —  The  most 
notable  feature  of  feudalism  is  that  in  its  system  sovereignty 
has  become  identified  with  ownership.  The  rights  exercised 
by  the  barons  were  in  many  cases  nothing  less  than  sovereign. 
Not  only  did  they  decide  property  titles  by  the  custom  of 
their  baronies  and  private  rights  by  laws  determined  in  their 
own  courts,  they  often  also  coined  money,  they  constantly 
levied  tolls  upon  commerce,  and  they  habitually  made  war 
when  they  pleased  upon  rival  neighbors.  They  gathered  about 


160 


TEUTONIC  POLITY  AND  GOVERNMENT 


them,  too,  as  the  king  did  about  himself,  an  immediate  fol- 
lowing of  knights,  whom  they  endowed  with  lands  as,  so  to 
say,  barons  of  these  lesser  kingdoms,  the  greater  baronies. 
They  commanded  this  retinue  and  exercised  these  sovereign 
powers,  moreover,  because  of  their  relations  as  owners  to  the 
lands  and  tenantry  of  their  domains.  Sovereignty,  in  this 
petty  parcelled  kind,  had  become  a  private  hereditary  posses- 
sion, an  item  in  family  assets.  Whoever  should  be  able  to 
accumulate  these  territorial  lordships  into  one  really  great 
kingship  would  be  owner,  and,  as  owner,  sovereign  of  the 
realm  (sec.  253). 

244.  Feudalism  and  the  Towns.  —  The  towns,  meantime, 
stood  out  with  not  a  little  success  against  feudalization.  Many 
a  town  was,  indeed,  dominated  by  the  threatening  pile  of  some 
baronial  castle,  built  over  against  it  on  the  strategic  vantage- 
ground  of  hill-summit  or  river  peninsula ;  and  all  were  con- 
strained sooner  or  later  to  yield  at  least  nominal  overlordship 
to  some  feudal  superior.  But  in  the  most  important  and 
powerful  burgs  enough  of  the  old  municipal  organization  and 
independence  was  preserved  to  transmit  to  the  times  which 
witnessed  the  downfall  of  feudalism  at  least  a  vivid  memory  of 
the  antique  communal  life  in  which  society  had  found  its  first, 
and  up  to  that  time  its  best,  vigor.  They  kept  alive  if  it  were 
only  a  tradition,  yet  a  fecundating  tradition,  of  that  true  con- 
ception of  political  authority  which  made  of  it,  not  a  piece  of 
private  property  to  be  bartered  or  sold,  but  the  organized,  the 
uttered  will  of  a  community. 

245.  The  Guilds.  —  Still,  within  the  cities  there  early 
sprang  up  a  semi-feudal  organization  of  society  altogether 
their  own.  The  importance  of  a  town  rested,  of  course,  not 
upon  the  ownership  of  lands,  though  many  towns  did  own  not 
a  little  land,  but  upon  wealth  gained  by  trade  and  industry. 
The  internal  social  organization  of  the  towns,  therefore,  tended 
more  and  more  to  turn  upon  the  relations  of  labor.  The  famous 
guild  system  sprang  into  existence.    Every  handicraftsman, 


DURING  THE  MIDDLE  AGES. 


161 


every  trader,  —  like  every  landowner  and  every  freeman  in  the 
society  outside  the  towns,  —  had  to  find  his  place  in  a  sharply 
differentiated  social  classification.  Each  occupation  was  con- 
trolled by  its  guild;  and  that  guild  was  a  close  corporation, 
admitting  to  membership  only  whom  it  chose.  No  one  could 
enter  save  through  the  stringently  guarded  avenues  of  a  limited 
and  prescribed  apprenticeship;  and  once  in,  the  apprentice 
was  bound  by  the  rules  of  the  order.  City  government  became 
representative  of  the  authority  of  associated  guilds.  No  one 
was  a  citizen  who  was  not  within  one  of  the  privileged  asso- 
ciations. It  is  a  reminiscence  of  this  old  order  of  things  that 
the  building  about  which  the  city  government  of  London,  as  of 
many  other  antique  towns,  still  centres  is  known  as  the  ^  Guild- 
hall.' Even  the  militia  of  the  towns  were  trainbands  from 
the  several  guilds.  The  town,  also,  had  created  its  '  estates,' 
its  orders,  as  the  country  had  done.   This  was  its  feudal  system. 

246.  The  City  Leagues. — The  greater  trading  towns  near 
the  Baltic  and  along  the  Ehine  took  advantage,  during  the 
thirteenth  century,  of  the  opportunities  for  independent  action 
afforded  them  by  the  piecemeal  condition  of  authority  under  the 
feudal  system  to  draw  together  into  leagues,  the  better  to  pursue 
their  own  objects  ;  and  for  a  very  long  time  these  leagues  exer- 
cised the  powers  of  great  states,  making  war  and  peace,  levy- 
ing custom,  concluding  treaties  and  alliances.  Their  primary 
object  was  to  cure  those  disorders  of  the  times  which  made  the 
roads  unsafe  and  so  interfered  with  their  trade.  The  greatest 
of  these  leagues  were  the  Hansa,  more  commonly  known  in 
English  writings  as  the  Hanseatic  {Hansa  means  trade-guild), 
and  the  Rhenish.  The  former  centred  about  the  great  cities 
of  Liibeck  and  Hamburg,  and  at  one  time  included  ninety  of 
the  towns  lying  between  the  Baltic  and  the  Elbe.  The  latter 
had  Worms  and  Mainz  as  its  leaders,  and  at  one  time  or  another 
had  connections  with  seventy  towns,  some  of  which  stood  as 
far  away  from  the  Ehine  as  Bremen  and  Nuremberg,  though 
the  arteries  of  trade  which  it  was  meant  to  protect  and  keep 


162  TEUTONIC  POLITY  AND  GOVERNMENT 

open  lay  chiefly  along  tlie  Rhine  valley.  Many  great  princes 
were  constrained  to  connect  themselves  with  these  leagues  in 
the  heyday  of  their  power.  But  trade  alliances  afforded  too 
many  occasions  for  jealous  discords,  and  the  growth  of  vast 
territorial  monarchies  too  dangerous  rivalries  for  the  cities ; 
and  their  leagues  were  eventually  broken  up. 

247.  Unifying  Influences.  —  Two  unifying  influences  oper- 
ated more  or  less  potently  during  the  Middle  Ages  to  counter- 
act the  disintegrating  tendencies  of  the  feudal  system.  These 
were  the  Roman  Catholic  Church  and  the  Holy  Roman  Empire. 
Both  the  Church  and  the  Empire  may  be  said  to  have  been 
shadows  of  imperial  Eome.  They  were,  by  intention  at  least, 
the  temporal  and  spiritual  halves  of  the  old  empire  of  the 
Csesars. 

248.  (1)  The  Roman  Catholic  Church  had,  historically,  a 
real  connection  with  the  veritable  dominion  of  Rome.  Before 
the  Empire  had  been  shattered  by  the  onset  of  Teutons  and 
Turks,  Christianity  had  become  its  recognized  official  religion. 
The  Pope  in  Rome  represented  one  of  the  great  primacies 
which  had  early  grown  up  within  the  imperial  Church :  and 
this  Church  of  the  West,  sundered  from  the  Church  of  the  East 
by  then  irreconcilable  differences  of  doctrine,  showed  an  in- 
stinct for  conquest  which  seemed  a  direct  heritage  from  the 
great  pagan  Rome  of  the  olden  time.  She  mastered  the  new 
masters,  the  Teutons,  and  everywhere  insinuated  herself  into 
the  new  political  system  which  developed  under  their  hand. 
Not  only  had  every  castle  its  chaplain,  every  city  and  country- 
side its  priest,  but  the  greater  ecclesiastics  themselves  became 
feudal  lords,  masters  of  baronies,  members  alike  of  the  civil 
and  the  religious  hierarchies ;  and  even  monasteries  owned 
vast  estates  which  were  parcelled  out  upon  a  feudal  tenure. 

249.  But,  for  all  it  was  so  interwoven  with  the  feudal  sys- 
tem, the  Church  retained  its  internal  unity.  The  Pope's  power 
did  not  fall  apart  as  did  the  king's.  The  priest  acknowledged 
in  all  things  his  allegiance  to  a  universal  kingdom,  the  s})iritual 


DURING  THE  MIDDLE  AGES. 


163 


kingdom  of  the  Cliurcli  of  Eome.  That  Church  recognized  no 
boundaries,  whether  of  baronies  or  of  states,  as  limits  to  her 
own  spiritual  sovereignty.  That  extended,  as  she  claimed, 
over  all  kings  of  whatsoever  grade,  over  all  men  of  whatsoever 
rank  or  estate.  The  silent,  unarmed  forces  of  her  influence, 
therefore,  stood  always  on  the  side  of  an  ideal  unity.  And 
they  certainly  retarded  disintegration.  Her  lesson  was  brother- 
hood and  a  common  subjection ;  and  that  lesson,  though  often 
neglected,  was  never  utterly  lost  sight  of  or  forgotten.  She 
kept  alive,  moreover,  in  her  canon  law,  much  of  the  civil  law 
of  Rome  :  her  laws  at  any  rate  were  not  diverse,  but  always 
the  same  ;  they  reached  the  people  and  the  conceptions  of  the 
time  through  the  administration  not  only  of  her  ecclesiastical 
courts,  but  also,  indirectly,  no  doubt  through  the  judgments  of 
the  baronial  courts  of  the  baron-bishops  :  and  whatever  tended 
to  unify  law  tended  to  unify  politics.  The  ecclesiastical  power 
was  always  on  the  side  of  any  good  Catholic  who  proved  him- 
self capable  of  creating  larger  wholes  of  political  authority, 
larger  areas  of  civil  unity.  By  precept  and  by  example  the 
Church  was  imperial. 

250.  (2)  The  Holy  Roman  Empire. —  Under  the  direct 
descendants  of  Chlodwig,  the  once  vast  dominions  of  the 
Franks  fell  asunder  in  several  pieces ;  but  Charles  the  Great 
(768-814)  reunited  and  even  extended  them.  He  brought 
together  under  his  sword  the  territory  now  included  in  Ger- 
many, Switzerland,  Hungary,  Italy  (all  save  the  southernmost 
part),  France,  and  Belgium.  And  neither  any  Teuton  nor  any 
successor  of  Teutons  in  Western  Europe  ever  gathered  wide 
territories  under  his  sway  without  dreaming  of  restoring  the 
Eoman  Empire  and  himself  ascending  the  throne  of  the  Caesars. 
From  Charles  the  Great  to  Napoleon  the  spell  of  the  Eoman 
example  has  bound  the  imagination  of  every  European  con- 
queror. Charles  had  this  ambition  clearly  in  his  view,  and 
circumstances  peculiarly  favored  its  realization.  At  the  same 
time  that  he  reached  the  height  of  his  power,  Eome  reached 


164 


TEUTONIC  POLITY  AND  GOVERNMENT 


the  acme  of  her  discontent  with  what  she  considered  the  here- 
sies of  the  Eastern  See,  and  the  political  disorders  at  Constan- 
tinople gave  the  Eoman  pontiff  pretext  for  casting  finally  loose 
from  all  Eastern  connections.  The  Empress  Irene  deposed  her 
son  and  usurped  his  throne;  the  Italians  declared  that  no 
woman  could  succeed  to  the  titles  of  the  Csesars ;  and  the  Pope, 
arrogating  to  himself  the  prerogatives  of  king-maker,  crowned 
Charles  the  Great  emperor  of  the  Holy  Roman  Empire,  — 
^  Holy '  because  created  by  the  authority  of  mother  Church. 

251.  Here  was  a  real  '  Western  Empire ' ;  the  first  had  been 
only  an  administrative  half  of  the  once  undivided  dominions 
of  the  emperors.  Charles  gave  to  his  empire  real  vitality 
while  he  lived ;  he,  moreover,  did  what  he  could  to  hasten  civil 
unity  by  promulgating  anew  the  Visigothic  version  of  the 
Roman  law  (sec.  231) ;  and,  although  his  empire  broke  up 
upon  his  death,  an  almost  uninterrupted  line  of  emperors,  of 
one  great  feudal  house  or  another,  carried  the  titles  of  Rome 
through  the  Middle  Ages  to  modern  times,  now  and  again 
backing  them  with  real  power  and  always  preserving  for  Ger- 
many a  shadow  at  least  of  unity  in  a  time  of  real  disintegra- 
tion. Believing  themselves,  besides,  in  the  early  times  at  any 
rate,  the  lineal  and  legitimate  successors  of  the  Caesars,  there 
was  special  reason  why  every  emperor  should  continue  to 
build,  so  far  as  he  had  the  opportunity,  as  Charles  the  Great 
had  begun  to  build,  on  the  law  of  Rome  as  a  foundation,  never 
designedly,  as  Charles  the  Bald  declared,  enacting  anything 
repugnant  to  it.  All  who  from  time  to  time  drew  to  the  side 
of  the  imperial  power  in  the  conflicts  of  disordered  ages  also 
naturally  affected  the  language  and  principles  of  the  same  sys- 
tem. The  Empire  was,  therefore,  not  only  sometimes  a  silent 
witness  and  sometimes  a  great  power  for  unification,  but  also 
always  a  steady  influence  on  the  side  of  a  system  of  law  more 
advanced  and  unifying  than  that  of  feudalism. 

252.  Centralizing  Forces  :  the  Carolingians.  —  The  rise  of 
the  family  of  Charles  the  Great  into  power  illustrates  the 


DURING  THE  MIDDLE  AGES. 


165 


character  of  the  chief,  indeed  the  only  potent,  centralizing 
forces  of  the  feudal  time.  Those  forces  lay  in  the  ambition 
of  great  barons.  Under  the  descendants  of  Chlodwig  (the 
Merowingians)  the  territory  of  the  Franks  tended  more  and 
more  to  become  permanently  divided  into  two  distinct  parts. 
There  were  often,  it  is  true,  more  parts  than  two :  for  it  was 
the  Frankish  custom  to  divide  even  a  royal  inheritance  between 
all  the  sons  of  a  deceased  possessor.  But,  as  it  fell  out  in  the 
long  run,  the  most  permanent  division  was  that  between  ISTeus- 
tria  (the  western  half)  and  Austrasia  (the  eastern).  In  both 
of  these  kingdoms  the  Merowingian  rulers  soon  degenerated 
into  mere  shadows  of  their  imperative,  dominant  ancestors ; 
and  they  were  presently  displaced  by  a  powerful  family  of 
Austrasia,  the  family  of  Charles  Martel.  Charles  Martel  was 
Mayor  of  the  Palace  under  the  Austrasian  branch  of  the  royal 
family.  The  office  of  Mayor  of  the  Palace,  though  an  office  in 
the  king's  household,  was,  it  would  seem,  filled  rather  by  dic- 
tation of  the  powerful  lords  of  the  kingdom  than  by  a  free 
royal  choice.  It  was  filled,  consequently,  at  any  rate  in  the 
times  of  which  I  am  now  speaking,  by  the  leader  of  the  great 
territorial  chiefs,  by  the  leader,  that  is,  of  the  king's  rivals  in 
power.  It  had  indeed  become  an  hereditary  office  held  by  the 
greatest  of  the  baronial  families.  Charles  Martel  was  a  soldier 
of  genius  :  he  handed  his  office  on  to  his  son  and  his  grandson : 
they  were  men  abler  than  he.  His  son,  Pepin,  with  the  sanc- 
tion of  the  Pope,  whom  he  had  greatly  served,  became  king  of 
the  Franks,  in  name  as  well  as  in  reality,  to  the  final  ousting 
of  the  old  line  of  ^  do-nothing  ^  monarchs ;  and  his  grandson 
was  Charles  the  Great. 

253.  The  Capets :  Concentration  of  Feudal  Power.  —  In  the 
tenth  century  a  similar  change  was  wrought  in  France.  The 
descendants  of  Charles  Martel  (Carolingians)  had  in  their  turn 
lost  vigor  and  become  unfit  for  power.  They  were  displaced, 
therefore,  in  the  western  half  of  their  dominions  (in  Xeustria) 
by  a  family  of  warriors  whom  they  had  endowed  first  with  the 


166  TEUTONIC  POLITY  AND  GOVERNMENT 


county  of  Paris,  and  afterwards  with  the  duchy  of  France,  as 
at  once  a  reward  for  their  services  in  withstanding  the  incur- 
sions of  the  Northmen  and  a  stake  in  the  threatened  territory. 
The  duchy  of  France  was  only  a  comparatively  small  district 
about  Paris;  but  the  vigor  and  capacity  of  the  Capets,  its 
dukes,  speedily  made  it  one  of  the  most  important  feudal  prop- 
erties in  the  whole  of  the  great  territory  to  which  it  was  even- 
tually to  give  its  name.  They  became  the  chiefs  of  the  baronial 
party,  and  when  discontent  with  the  Carling  kings  culminated, 
it  was  they  who  became  first  ^  kings  of  the  barons,'  and  finally 
kings  of  France.  Eefusing  to  degenerate,  as  the  Merowingian 
and  Carolingian  princes  had  degenerated,  they  continued  to  de- 
velop, generation  after  generation,  a  kingdom  destined  one  day 
to  rank  with  the  greatest  of  Europe  ;  and  that  by  a  process 
planned  as  if  meant  to  illustrate  how  best  the  feudal  system 
might  be  used  for  its  own  destruction.  By  every  means  —  by 
war,  by  marriage,  by  contract,  by  stratagem,  by  fraud  —  they 
drew  all  the  greater  feudal  sovereignties  into  their  own  posses- 
sion, until  at  length,  their  duchy  of  France  and  the  kingdom 
of  France  were  indeed  identical;  until,  having  absorbed  all 
scattered  authorities,  they  had  made  sovereignty,  once  possessed 
privately  in  sundered  pieces,  once  more  a  whole,  —  but  a  whole 
which,  by  the  strict  logic  of  feudalism,  was  their  private  estate ; 
until  they  almost  literally  possessed  the  land,  and  Louis  XIV. 
could  say  with  little  exaggeration,  ^L'etat  c^est  moi.^  They 
had  gathered  the  fragments  of  the  feudal  system  into  a  single 
hand,  and  had  made  the  state  itself  a  feudal  possession,  a  family 
estate. 

254.  The  Piecing  together  of  Austria  and  Prussia.  —  Later 
still  the  same  process  was  repeated  in  Prussia  and  in  Austria. 
By  conquest,  inheritance,  forfeiture,  marriage,  contract,  fraud, 
powerful  feudal  families  pieced  together  those  great  kingdoms, 
to  become  in  after  times  the  bases  of  national  organization. 
In  neither  Prussia  nor  Austria  did  the  process  go  so  far  as  in 
France,  though  Austria,  under  the  great  house  of  Habsburg, 


DUEING  THE  MIDDLE  AGES. 


167 


became  possessor  of  the  imperial  throne  of  the  Holy  Eoman 
Empire,  and  Prussia,  under  the  equally  great  house  of  Hohen- 
zollern,  has  become  the  central  and  dominant  state  of  a  new 
German  Empire,  which,  through  the  healthful  processes  of 
modern  national  life,  if  not  through  the  happily  obsolete  forces 
of  absolutism,  may  yet  be  as  truly  compact  and  unified  a  king- 
dom as  any  the  world  has  seen. 

Roman  Law  in  Modern  Legal  Systems. 

255.  From  the  fifth  to  the  twelfth  centuries  Roman  law 
inhered  in  the  confused  civil  methods  of  the  times  for  the  most 
part  as  a  mere  unsystematized  miscellany  of  rules  applicable 
to  the  descendants  of  the  Roman  provincials  and  observed 
largely  within  the  towns.  As  the  old  distinctions  between 
Roman  and  Teuton  faded  away,  however,  in  the  gradual  mixture 
of  the  populations,  these  rules  entered  more  and  more  into  the 
general  mass  of  common  custom.  This  process  was  in  great 
part  unconscious  ;  there  was  no  scientific  selection  in  the  devel- 
opment. 

256.  The  Barbaric  Codes.  —  It  was  not  from  mere  tradition, 
however,  —  not  simply  from  Roman  law  transmuted  into  unre- 
corded provincial  custom,  —  that  the  knowledge  of  these  cen- 
turies concerning  the  civil  law  of  the  Empire  was  derived,  but 
from  the  Theodosian  legislation  and  the  writings  of  the  jurists 
as  they  appeared  in  the  Code  of  Alaric  II.  (sec.  231),  which  is 
known  to  quotation  as  the  Breviary  (brevarium  Alaricianum). 
The  West  Goths  themselves  had  not  long  remained  contented 
with  that  compend  of  the  law.  In  the  seventh  century  there 
had  been  prepared  in  Spain  a  new  Lex  Visigothorum  which 
contained  a  summary,  not  of  Roman  rules  only,  but  of  Gothic 
custom  as  well,  and  which,  superseding  the  earlier  compilation 
of  Alaric,  formed  the  basis  for  later  codifications  of  Spanish  law. 
But  the  south  of  France,  which  had  once  owned  the  domin- 
ion of  the  Visigoth,  retained  the  Code  of  Alaric ;  it  was  trans- 


168  TEUTONIC  POLITY  AND  GOVERNMENT 

mitted  thence  to  the  north  of  France,  to  be  handed  on  to  Ger- 
many and  England  ;  and  for  all  of  these  countries  it  continued 
to  be  the  chief,  if  not  the  only  source  of  Eoman  law  until  the 
eleventh  or  twelfth  century.  Charles  the  Great,  as  I  have  said, 
republished  it,  accepting  it  as  the  recognized  manual  of  Eoman 
legal  principle.  Even  Italy  had  had  the  continuity  of  her 
legal  tradition  broken  by  barbarian  invasion,  —  especially  by 
the  inroad  of  the  raw  Lombards,  —  and  had  had  to  keep  the 
fragments  together  as  best  she  might  amidst  just  such  a  con- 
fusion of  ^  personal '  laws  as  prevailed  elsewhere  in  the  once 
Eoman  world  (sec.  231). 

257.  Custom  and  Written  Law  in  France.  —  It  was  at  this 
time  that  the  north  and  south  of  France  came  to  be  distin- 
guished as  respectively  the  '  country  of  custom '  {pays  de  cou- 
tume)  and  the  '  country  of  written  law '  (i^ays  de  droit  ecrit). 
In  the  south,  which  had  been  thoroughly  Eomanized  for  centu- 
ries, there  was  the  written  law  of  Eome ;  in  the  north,  which 
had  never  been  so  thoroughly  Eomanized,  and  which  was  now 
quite  thoroughly  Germanized,  there  reigned  in  unrestrained 
confusion  the  Teutonic  customs  of  the  barbarian  masters. 

This  division  corresponded  closely  with  the  division  between  the 
langue  d'oc  and  the  langue  cl'oil.  The  districts  of  the  langue  d'oil  (of  the 
Frankized  Latin)  were  the  country  of  custom ;  the  districts  of  the  langue 
d'oc,  the  country  of  written  law. 

258.  The  Study  of  the  Roman  Law. — But  in  the  twelfth 
century  the  law  of  Eome  fell  upon  the  good  fortune  of  being 
systematically  studied  once  more  by  competent  scholars,  and 
once  more  cultivated  by  scientific  lawyers.  And  not  the  Code 
of  Alaric,  but  the  vastly  more  perfect  Corpus  Juris  Civilis,  as 
the  twelfth  century  called  it,  Justinian's  (or,  rather,  Trebo- 
nian's)  great  compilation,  which  Germanized  Europe  had 
hitherto  used  scarcely  at  all,^  was  the  basis  of  the  revived 

1  The  Digest  and  the  Codex  were  in  some  measure  made  use  of  by  the 
canonists  throughout  the  Dark  Ages. 


DURING  THE  MIDDLE  AGES. 


169 


study.  The  new  cultivation  of  the  law  began,  naturally  and 
properly  enough,  in  Italy.  The  University  of  Bologna  rose 
into  prominence  and  became  famous  as  the  chief  seat  of  the 
study  of  the  Eoman  code.  Pisa  and  other  Italian  schools  then 
took  up  the  new  pursuit.  Presently  the  interest  had  spread 
to  France  and  to  Spain,  going  in  France  first  to  Montpellier 
and  Paris,  afterwards  to  Bourges,  Orleans,  and  Toulouse,  the 
old  capital  of  the  West  Goths ;  and  in  Spain  creating  (a.d. 
1254)  the  notable  University  of  Salamanca.  From  Spain  and 
France,  Holland  caught  the  fashion,  giving  to  Europe  in  the 
seventeenth  century  the  illustrious  jurist  Hugo  Grotius,  who 
created  out  of  the  great  principles  of  equity  discoverable  in 
Roman  Law  the  elevated  and  influential  science  of  Interna- 
tional Law  (sec.  1216).  In  England,  too,  the  same  studies 
began  to  be  affected  almost  immediately  after  the  rise  of  the 
school  of  Bologna,  and  are  said  to  have  been  regularly  pursued 
there  down  to  the  sixteenth  century. 

259.  Entrance  of  Roman  Law  into  the  Legal  Systems  of 
Europe.  —  Of  course  this  widespread  interest  in  the  study  of 
Roman  law  was  not  all  speculative.  The  study  and  the  prac- 
tice of  the  law  acted  and  reacted  on  one  another.  Its  rules 
were  more  and  more  consciously  and  skilfully  fitted  into  the 
growing  law  of  the  kingdoms  which  were  emerging  from  the 
feudal  system  because  it  was  being  adequately  mastered  and 
systematized  at  the  universities ;  and  it  was  being  mastered 
and  systematized  at  the  universities  because  it  was  being  more 
and  more  called  for  in  the  actual  administration  of  justice. 
Its  use  and  its  cultivation  went  hand  in  hand. 

260.  In  France  Louis  IX.  (1226-1270)  ordered  the  Roman 
law  to  be  translated  into  French,  and,  by  the  judicial  reforms 
which  he  instituted  (sec.  296)  illustrated  the  history  that  law 
was  to  have  in  the  kingdom  of  the  Capets.  Roman  law  came 
into  use  in  France  with  much  the  same  pace  with  which  the 
Capets  advanced  to  complete  power,  and  triumphed  with  the 
perfecting  of  the  centralization  which  they  effected.  Louis 


170 


TEUTONIC  POLITY  AND  GOVERNMENT 


IX.  established  the  right  of  the  crown  to  hear  appeals  from 
the  feudal  courts  in  all  cases ;  he  sent  royal  judges  on  circuit 
to  hear  complaints  of  infringed  rights  ;  and  at  Paris  he  erected 
the  famous  Parliament  of  Paris  as  the  supreme  tribunal  of  the 
realm.  The  feudal  lords  of  France  were  the  nominal  members 
of  this  court,  but  trained  jurists  (legistes),  appointed  as  experts 
to  assist  them,  became  in  practice  its  real  members.  Schooled 
in  the  Koman  law,  they  admitted  its  principles  into  all  their 
decisions  ;  and  they  gave  to  the  king  from  the  same  source  the 
maxim  which  declared  the  will  of  the  prince  to  be  law.  As 
the  king's  jurisdiction  grew,  the  principles  of  Eoman  jurispru- 
dence gained  wider  and  wider  acceptance  and  supremacy. 

261.  And  presently  the  Eoman  law  came,  so  to  say,  from 
out  the  nation  to  meet  the  royal  system.  Very  early  in  Berri, 
Bourbonnais,  and  Auvergne,  the  central  districts  of  France,  the 
law  of  Eome  had  been  adopted  as  the  common  law  of  the  land, 
to  be  appealed  to  in  the  absence  of  proof  of  any  special  custom 
or  enactment.  Subsequently  it  came  to  be  considered  as  in 
some  sort  the  supplementary  common  law  of  all  France,  for, 
though  never  established  as  such  in  the  north  of  France,  it 
was  even  there  appealed  to  in  doubtful  cases  as  '  written  reason/ 
The  Code  Na.poUon,  the  last  great  codification  of  French  law, 
has  been  described  as  in  great  part  a  republication  of  the  laws 
of  Justinian  as  those  laws  have  been  modified  and  fitted  to  new 
circumstances  by  the  processes  of  French  history.  The  state- 
ment ought,  however,  to  be  taken  with  an  important  qualifica- 
tion. A  very  great  deal  of  Germanic  law  found  permanent 
place  among  accepted  legal  principles  in  France,  though  Eoman 
law  contributed  the  chief  formative  forces,  the  forces  of  fusion 
and  system. 

262.  Local  Custom  in  France.  — It  is  important  to  observe, 
however,  that  the  unifying,  harmonizing  influences  exercised 
by  the  growing  royal  jurisdiction  were,  for  a  long  time  at  any 
rate,  influences  which  affected  iiroceclure  rather  than  the  in- 
ternal, essential  elements  of  legal  principle.    The  differentia- 


DURING  THE  MIDDLE  AGES. 


171 


tion  between  district  and  district  which  had  taken  place  in  the 
process  of  feudalization  had  been  of  the  sharpest,  most  decided 
character.  When  the  Capets  first  assumed  the  titles  of  king- 
ship there  were  as  great  duchies  as  France.  The  work  of 
extending  and  consolidating  the  kingdom  consumed  several 
centuries  ;  and,  meanwhile,  each  petty  sovereignty  was  develop- 
ing its  own  law  apart.  Much  of  the  territory  which  afterwards 
became  part  of  France  was,  during  the  same  period,  moreover, 
in  foreign  hands,  held  by  England  or  Burgundy.  The  king- 
dom as  finally  consolidated,  therefore,  presented  a  very  great 
variety  of  deeply  rooted  and  persistent  local  laws  and  customs. 
Normandy  had  one  set  of  customs,  Berri  a  very  different  set, 
Anjou  a  third,  Brittany  a  fourth ;  and  so  throughout  the  once 
piecemeal  country. 

263.  Unifying  Influence  of  the  Royal  Prerogative.  — The 
influence  of  the  royal  jurisdiction  upon  this  heterogeneous 
mass  of  differing  laws  was,  as  I  have  said,  at  first  rather  to 
unify  and  systematize  the  procedure  of  the  local  courts  which 
administered  local  law  in  semi-independence  than  to  effect 
changes  in  the  customs  themselves.  Since  appeals  to  the 
king's  justice  were  possible  in  all  cases,  the  formal  method 
of  appeal  tended  to  become  the  same  everywhere ;  and  the 
methods  of  the  king's  courts  in  dealing  with  appealed  cases  of 
course  more  and  more  tended  to  set  the  fashion  of  procedure 
throughout  the  loose  system,  though  the  royal  judges  continued 
to  decide  appealed  cases  according  to  the  law  of  the  district 
from  which  they  were  brought  up. 

264.  By  degrees,  however,  new  ideas  and  principles,  as  well 
as  new  modes  of  procedure  and  appeal,  were  infused  into  local 
justice.  The  law  and  the  legal  practice  of  each  district  alike 
more  and  more  distinctly  and  consciously  approximated  to  the 
models  of  organization  and  to  the  standards  of  decision  obtain- 
ing in  the  king's  courts.  The  territorial  tribunals  accepted 
the  services  of  lawyers  trained  in  Eoman  principles  and  in- 
clined towards  regal  precedents ;  and  the  local  law  officers  of 


172 


TEUTONIC  POLITY  AND  GOVERNMENT 


the  crown  were  of  course  everywhere  ready  to  effect  whatever 
was  within  reach  of  their  functions  or  example  in  the  way  of 
bringing  local  custom  around  to  the  rules  of  universal  accept- 
ance to  be  found  in  Roman  law  and  regal  decision.  Indepen- 
dently, too,  of  the  influence  of  the  crown  the  Roman  law  was 
entering  the  local  courts,  becoming  common  law  in  Auvergne 
and  Bourbonnais,  as  we  have  seen,  before  it  became  the  com- 
mon law  of  France. 

265.  Through  the  Parliament  of  Paris  (sees.  293,  298)  the 
Roman  law  had,  so  to  say,  a  double  door  of  entrance.  The 
jurisdiction  of  that  court  was  both  spiritual  and  temporal :  so 
that  both  the  Code  of  Justinian  and  the  canons  of  the  Church 
contributed  their  versions  of  Roman  judicial  practice  and  tra^ 
dition  to  its  findings. 

266.  In  Germany,  as  in  France,  the  influence  of  the  Roman 
law  has  attended  the  progress  of  the  forces  of  unification. 
The  Romans  had  never  established  their  power  beyond  the 
Rhine.  There,  after  the  movements  of  the  Teutonic  tribes  in 
the  fifth  and  following  centuries,  as  before,  Germanic  custom 
had  almost  undisputed  mastery.  The  feudal  system,  moreover, 
left  its  work  in  more  complete  crystallization  in  Germany  than 
elsewhere  :  for  Germany  emerged  from  the  Middle  Ages  what 
she  still  is  in  great  part,  namely,  a  mere  congeries  of  petty 
states.  Still  the  Holy  Roman  Empire,  however  shadowy  it 
became  at  times,  had  been  created  in  Germany  with  the  dis- 
tinct idea  of  a  title  derived  directly  from  Rome ;  and  through- 
out all  the  changes  of  German  history  the  imperial  influence 
has  sheltered  and  fostered  Roman  law.  The  imperial  courts, 
the  imperial  lawyers,  the  imperial  party  in  general,  were 
always  administrators  or  advocates  of  its  principles.  When 
the  house  of  Habsburg  came  to  possess  the  Empire,  as  when 
other  powerful  emperors  had  reigned  (sees.  370,  374  e^  seg'.), 
there  was  no  small  potency  in  these  influences.  More  and 
more  pervasive  became  the  great  irresistible  system  of  law; 
everywhere,  without  displacing,  it  instructed,  supplemented, 


DURING  THE  MIDDLE  AGES. 


173 


moulded  Germanic  custom,  until  now  its  presence  in  both,  na- 
tional and  local  law  has  made  it  the  basis  of  all  legal  study  in 
Germany,  and  the  Corpus  Juris  is  a  '  subsidiary  authority '  in 
almost  all  courts.  To  a  certain  extent  Koman  law  was  suffered 
even  to  displace  Germanic  custom.  Very  early  the  courts, 
while  accepting  Eoman  legal  rules  as  prima  facie  conclusive  of 
the  rights  of  a  suitor,  imposed  upon  those  who  alleged  estab- 
lished local  usage  in  opposition  to  it  the  necessity  of  furnish- 
ing conclusive  proof  of  the  existence  and  acceptance  of  such, 
usage  as  law.  E-oman  law,  in  brief,  they  accepted,  so  to  say, 
on  its  own  authority,  Germanic  custom  only  on  the  authority 
of  indubitable  testimony.  The  German  universities  now  fur- 
nish the  world  with  Eoman  lawyers  greater  than  those  which 
once  came  forth  from  Bologna  and  Paris  and  Leyden. 

267.  In  England  the  Eoman  law  has  had  a  more  obscure 
but  hardly  a  less  interesting  history.  The  Eomans  governed 
Britain  four  hundred  years,  bending  the  province  to  the  pur- 
poses of  their  administration  with  their  usual  thoroughness. 
We  know  that  Papinian,  the  greatest  of  Eome's  jurists,  him- 
self administered  the  law  in  Britain,  and  we  have  every  rea- 
son to  believe  that  its  promulgation  there  was  thorough,  its 
rootage  full  four  hundred  years  deep.  It  can  hardly  be  that 
the  Saxons  wholly  eradicated  it.  We  know  that  many  Eoman 
municipalities  on  the  island  survived  all  conquests :  and  we 
know  that  the  priests  of  the  Church  of  Eome  early  took  back 
to  Englished  Britain  conceptions  steeped  in  Eoman  juris- 
prudence. Bede  testifies  that  the  Saxon  laws  were  codified 
under  the  auspices  of  the  clergy  and  that  Eoman  codifica- 
tion was  the  model.  We  have  seen  that  Eoman  law  was 
studied  in  England  almost  as  early  as  in  mediaeval  Italy  her- 
self, the  study  being  continued  without  serious  break  for  more 
than  three  centuries  (  sec.  258 )  ;  and  the  works  of  the  ear- 
liest English  legal  text-writers,  such  as  Bracton,  Glanvil, 
and  the  author  of  the  Fleta^  abound  in  tokens  of  a  close 
familiarity  with  the  laws  of  the  imperial  codes,  are  full  of 


174  TEUTONIC  POLITY  AND  GOVERNMENT 


their  very  phraseology  indeed.  The  laws  of  Henry  I.  are 
said  by  competent  legal  scholars  to  consist,  to  the  extent  of 
fully  one-half  their  content,  of  precepts  borrowed  from  Rome. 
Through  the  ecclesiastical  courts,  which  down  to  the  middle 
of  the  present  century  administered  upon  all  estates  in  Eng- 
land, and  upon  all  trusts ;  through  the  Court  of  Chancery, 
whence  has  issued  the  system  of  English  equity,  and  which 
was  presided  over  in  its  formative  period  by  the  great  eccle- 
siastics v/ho  were  the  first  Chancellors,  afterwards  by  lawyers, 
such  as  Lord  Mansfield,  deeply  versed  in  the  civil  law  of 
Eome  and  apt  to  draw  suggestion  and  even  concrete  rule 
from  it ;  and  through  the  Admiralty  Courts,  always  controlled 
by  the  rules  of  the  Civil  Law,  England  has  drawn  so  copi- 
ously from  Eoman  sources,  in  supplement  of  her  own  indig- 
enous Germanic  customs,  that  only  that  portion  of  her  law 
which  relates  to  the  holding  of  real  property  has  escaped 
being  very  deeply  marked  by  the  same  influences  that  have 
moulded  all  the  law  of  the  rest  of  Europe. 


Eepresextative  Authorities. 

Church,  R.  W.,  "  The  Beginnings  of  the  Middle  Ages."    (Series  of 

Epochs  of  Modern  History.) 
Emerton,  E.,  "  Introduction  to  the  Study  of  the  Middle  Ages." 

Boston,  1889. 

Hallam,  H.,  "  View  of  the  State  of  Europe  during  the  Middle  Ages," 
especially  Chapter  II,,  which  contains  what  is  possibly  the  best 
brief  account  in  English  of  the  Feudal  System. 

Guizot,  F.,  "  Lectures  on  the  History  of  Civilization  in  France  and  in 
Europe." 

Stephen,  Sir  James,  "  Lectures  on  the  History  of  France,"  especially 

lectures  L-V.,  inclusive. 
Duruy,  Victor,  "  llistoire  du  Moyen  Age,  depuis  la  chute  de  I'Empire 

d'Occident  jusqu'au  milieu  du  XV^  Siecle."    1  vol.    Paris.  8th 

ed.,  1875. 


DURING  THE  MIDDLE  AGES. 


175 


Sheppard,  J.  G.,  The  Fall  of  Koine  and  the  Rise  of  the  New  Nation- 
alities."   1  vol.    London  and  New  York,  1861. 

Heeren,  A.  H.  L.,  "  Manual  of  the  History  of  the  Political  System  of 
Europe  and  Its  Colonies."    Oxford,  1834. 

Freeman,  E.  A.,  "  Historical  Essays."    Series  I. 

Curteis,  A.  M.,  "  History  of  the  Roman  Empire  from  the  Death  of 
Theodosius  the  Great  to  the  Coronation  of  Charles  the  Great, 
395-800."  1875. 

Gibbon,  E.,  "  Decline  and  Fall  of  the  Roman  Empire."  Smith's  ed. 
New  York,  1880. 

Milman,  H.  H.,  "  History  of  Latin  Christianity."  8  vols.  New  York. 
Bryce,  "  The  Holy  Roman  Empire." 

Bluntschli,  J.  C,  "  Allgemeine  Statslehre."  Book  I.,  Chapters  TV.,  VL 
Stuttgart,  1875.    There  is  an  American  translation  of  this  work. 

Concerning  the  introduction  of  Roman  law  into  modern  European 
legal  systems,  see  authorities  at  end  of  Chapter  IV.,  ante. 


VI. 


THE  GOVEENMENT  OF  EEA^^CE. 

268.  The  Growth  of  the  French  Monarchy .  — The  full 

political  significance  of  the  liistoiy  of  France  can  be  appreci- 
ated only  by  those  Avho  keep  in  mind  the  chief  phenomena 
of  the  widening  monarchy,  the  successive  steps  by  which  the 
Dukes  of  France,  the  capable  Capets,  extended  their  power 
and  the  name  of  their  duchy  over  the  whole  of  the  great  terri- 
tory which  was  to  be  inherited  by  Louis  XIY.  The  course  of 
French  history  is  from  complex  to  simple.  In  the  days  of 
Hugh  Capet  ^France'  was  the  name  of  only  a  single  duchy 
centring  in  Paris,  one  of  a  great  number  of  feudal  lordships 
equally  great,  equally  vigorous,  equally  wedded  to  indepen- 
dence. The  duchy's  advantage  lay  in  the  fact  that  her  dukes 
had  been  chosen  for  leadership  and  that  they  were  capable 
of  leadership,  rather  than  in  the  possession  of  preponderant 
strength  or  superior  resources.  To  the  west  of  her  lay  the 
solid  mass  of  Normandy;  to  the  north  lay  the  territories  of 
the  Counts  of  Flanders  and  Vermandois,  and  to  the  east  the 
territory  of  the  Count  of  Champagne ;  the  great  duchies  of 
Burgundy  and  Acquitaine  lay  to  the  south,  beyond  them  the 
lands  of  Toulouse ;  alongside  of  jSTormandy,  Anjou  and  Brit- 
tany stretched  their  independent  length  to  the  west.  And 
these  were  only  the  greater  feudal  sovereignties :  within  and 
about  them  lay  other  districts  not  a  few  with  masters  ready  to 
assert  privileges  without  number  in  contradiction  of  all  central 
rule.    The  early  history  of  France  is  the  history  of  a  duchy 


THE  GOVERNMENT  OF  FKANCE. 


177 


striving  to  become  a  kingdom.  ^France'  holds  a  good  stra- 
tegic position,  and  fortune  has  made  her  dukes  titular  kings 
over  their  feudal  neighbors,  but  still  she  is  in  reality  only  one 
among  many  duchies. 

269.  By  slow  and  steady  steps,  however,  a  work  of  unifica- 
tion is  wrought  out  by  the  Capets.  In  every  direction  they 
stretch  out  from  their  central  duchy  of  France  their  hand  of 
power  and  of  intrigue  and  draw  the  pieces  of  feudalized  Neus- 
tria  together  into  a  compact  mass.  The  work  is  thoroughly 
done,  moreover,  at  almost  every  stage :  out  of  populations  as 
heterogeneous  as  any  in  Europe  they  construct  a  nation  than 
which  none  is  more  homogeneous.:  out  of  feudal  lordships  as 
strong,  as  numerous,  as  heady,  and  as  stiffly  separate  as  any 
other  equal  territory  could  show,  they  construct  a  single  king- 
dom more  centralized  and  compacted  than  any  other  in  Europe. 
Th-e  processes  of  these  singular  achievements  give  to  the  his- 
tory of  the  French  monarchy  its  distinctive  political  signifi- 
cance: the  means  which  the  Capets  devised  for  solidifying, 
and,  after  its  solidification,  for  enlarging  and  effectuating  their 
power,  furnish  some  of  the  most  suggestive  illustrative  mate- 
rial anywhere  to  be  found  for  the  general  history  of  govern- 
ment. 

270.  Perfection  of  the  Feudal  System  in  France. — The 

feudal  system  worked  its  most  perfect  work  in  France.  The 
opportunities  of  feudalism  there  were  great.  Neustria,  the 
western,  Gallic  half  of  the  great  Frankish  kingdom,  was  early 
separated  from  Austrasia,  the  eastern,  Germanic  half  (sees. 
252,  253),  and  its  separateness  proved  the  cause  of  its  disinte- 
gration. Burgundy,  Brittany,  and  Acquitaine  sprang  to  the 
possession  of  unchecked  independent  power  round  about  it; 
the  Normans  thrust  their  huge  wedge  of  territory  into  it; 
battle  after  battle  between  those  who  contended  for  the  pos- 
session of  the  pieces  of  the  great  empire  which  Charles  the 
Great  had  swept  together  first  decimated  and  finally  quite 
annihilated  the  sturdy  class  of  Frankish  freemen  whose  liber- 


178 


THE  GOVERmiENT  OF  FRANCE. 


ties  had  stood  in  tlie  way  of  local  feudal  absolutism ;  privilege 
grew  in  the  hands  of  feudal  lords  while  prerogative  declined 
in  the  hands  of  those  who  sought  to  be  kings ;  those  who 
possessed  privilege  built  for  themselves  impregnable  castles 
behind  whose  walls  they  could  securely  retain  it :  —  and  feu- 
dalism had  its  heyday  in  France. 

271.  It  is  reckoned  that  in  Hugh  Capet's  day  the  "free  and  noble 
population  "  of  the  country  out  of  which  modern  France  was  to  be  made 
numbered  "  about  a  million  of  souls,  living  on  and  taking  their  names 
from  about  seventy  thousand  separate  fiefs  or  properties  :  of  these  fiefs 
about  three  thousand  carried  titles  with  them.  Of  these  again,  no  less 
than  a  hundred,  —  some  reckon  as  many  as  a  hundred  and  fifty,  —  were 
sovereign  states,  greater  or  smaller,  whose  lords  could  coin  money,  levy 
taxes,  make  laws,  administer  their  own  justice."  '  Of  these  one  hundred, 
however,  only  some  eight  or  ten  were  really  powerful  states. 

272.  Materials  of  the  Monarchy.  —  Such  were  the  materials 
out  of  which  the  Capets  had  to  build  up  their  monarchy.  It 
was  their  task  to  undo  the  work  of  feudalism.  But  these  were 
not  the  only  materials  that  they  had  to  handle  in  the  difficult 
undertaking.  There  were  other  privileges  besides  those  of 
the  feudal  barons  which  it  was  necessary  to  destroy  or  subor- 
dinate before  they  could  see  their  power  compact  and  undis- 
puted. 

273.  Local  Self -Government.  —  Xotwithstanding  the  fact 
that  in  most  districts  of  the  divided  territory  the  power  that 
ruled  him  was  brought  close  to  every  man's  door  in  the  person 
of  his  feudal  lord  and  master,  there  were  many  corners  of  the 
system  which  sheltered  vigorous  local  self-gOA^ernment.  The 
period  of  the  greatest  vitality  of  the  feudal  system  was,  in- 
deed, the  only  period  of  effectual  local  self-government  that 
France  has  ever  known.  The  eventual  supremacy  of  the 
crown,  which  snatched  their  power  from  the  barons,  also 
destroyed  local  self-government,  which  the  barons  had  in  many 
cases  suffered  to  grow ;  and  neither  the  Eevolution  nor  any  of 

1  G.  W.  Kitchin,  History  of  France,  Vol.  I.,  p.  186. 


THE  GOVERNMENT  OF  FRANCE. 


179 


the  governments  which,  have  succeeded  the  Revolution  has  yet 
restored  it  to  complete  life.  Local  liberties  were  taking  form 
and  acquiring  vigor  during  the  very  period  in  which  the  mo- 
narchical power  was  making  its  way  towards  supremacy ;  and 
it  was  by  these  local  liberties  that  the  kings  found  themselves 
faced  when  their  initial  struggle  with  feudalism  was  over.  It 
was  their  final  task  to  destroy  them  by  perfecting  centralized 
administrative  organization. 

274.  Rural  Communes. — While  feudalism  was  in  its  crea- 
tive period,  while  the  forces  were  at  work,  that  is,  which  were 
shaping  the  relations  of  classes  and  of  authorities  to  each 
other,  it  was  not  uncommon  for  feudal  lords  to  grant  charters 
to  the  rural  communes  lying  within  their  demesnes.  In  and 
after  the  twelfth  century  these  charters  became  very  numerous. 
They  permitted  a  separate  organic  structure  to  the  communes, 
regulated  the  admission  of  persons  to  communal  privileges, 
laid  down  rules  for  the  administration  of  property  in  the  com- 
mune, set  forth  feudal  rights  and  duties,  prescribed  the  cor- 
v6es,  etc.  "  Everywhere  a  general  assembly  of  the  inhabitants 
directly  regulated  affairs,"  delegating  executive  functions  to 
communal  officers,  who  acted  se^Darately,  each  in  the  function 
with  which  he  was  specially  charged.  These  officers  con- 
voked the  general  assembly  of  the  people  for  every  new 
decision  that  it  became  necessary  to  take  with  reference  to 
communal  affairs.  The  principal  affairs  within  the  jurisdic- 
tion of  the  assembly  were,  "  the  administration  of  communal 
property,  which  in  that  period  was  very  important,  police,  and 
the  collection  of  the  taxes  both  royal  and  local."  ^ 

275.  In  the  administration  of  justice,  also,  the  Middle  Ages 
witnessed  in  France  not  a  few  features  of  popular  privilege. 
The  peasant  as  well  as  the  nobleman  had  the  right  to  be  tried 
by  his  peers,  —  by  persons  of  his  own  origin  and  station.  In 
the  courts  of  the  feudal  barons  the  vassals  were  present  to  act 

1  H.  de  Ferron,  Institutions  Municipales  et  Provinciaks  Compar^es,  p.  3. 


180 


THE  GOVERNMENT  OF  FRANCE. 


as  judges,  mucli  as  the  freemen  were  present  in  the  English 
county  courts  (sees.  655,  751). 
276.  Liberties  of  Towns:  the  Roman  Municipalities. — 

The  privileges  of  self-direction  granted  to  the  rural  communes, 
however,  were  privileges  granted,  so  to  say,  inside  vassalage: 
the  members  of  the  communes  were  not  freed  from  their  con- 
stant feudal  duties.  Many  towns,  on  the  contrary,  acquired 
and  maintained  a  substantial  independence.  When  the  earliest 
Prankish  kings  failed  in  their  efforts  to  establish  a  power  in 
Gaul  as  strong  and  as  whole  as  the-  Roman  power  had  been, 
and  the  Frankish  dominion  fell  apart  into  fragments  whose 
only  connection  was  a  nominal  subordination  to  a  central 
throne,  there  were  others  besides  the  great  landowners  to  avail 
themselves  of  the  opportunity  to  set  up  independent  sovereign 
powers  of  their  own.  The  Franks,  as  we  have  seen,  had  found 
many  Roman  cities  in  Gaul,  and,  not  at  first  taking  kindly 
to  town  life,  had  simply  conquered  them  and  then  let  them  be 
(sec.  232).  In  these,  consequently,  the  old  Roman  organiza- 
tion had  endured,  freed  from  Roman  dictation.  The  Franks 
who  entered  them  later  took  character  from  them  almost  as 
much  as  they  gave  character  to  them.  Germanic  principles  of 
moot-government  and  individual  freedom  entered,  to  a  certain 
extent,  like  a  new  life-blood  into  the  Roman  forms,  and  com- 
pact, spirited,  aggressive,  disciplined  communities  were  formed 
which  were  quick  to  lay  hold  of  large  privileges  of  self-rule, 
and  even  to  assume  semi-baronial  control  of  the  lands  lying 
about  them,  in  the  days  when  independent  powers  were  to 
be  had  for  the  seizing.  The  organization  which  Roman  influ- 
ences had  bequeathed  to  these  towns  was  oligarchical,  aristo- 
cratic :  the  governing  power  rested  with  close  corporations, 
with  councils  (curice)  which  were  co-optative,  filling  their 
own  vacancies.  But  forces  presently  appeared  in  them  which 
worked  eifectually  for  democracy.  The  Christian  Church,  as 
well  as  the  barbarian  Teuton,  took  possession  of  Gaul :  the 
greater  towns  became  the  seats  of  bishops ;  and  the  bishops 


THE  GOVERNMENT  OF  FRANCE. 


181 


threw  their  weight  on  the  side  of  the  commons  against  both 
the  counts  outside  the  towns  and  the  oligarchs  inside.  Only 
so  could  the  magnates  of  the  Church  establish  themselves  in 
real  power.  In  most  cases  the  ecclesiastics  and  their  restless 
allies,  the  commons,  won  in  the  contest  for  supremacy,  and 
democracy  was  established. 

The  Italian  towns,  with  their  *  consuls '  and  their  other  imitations 
of  the  old  Roman  republican  constitution,  are  perhaps  the  best  examples 
of  this  renaissance  of  democracy. 

277.  The  Non-Roman  Municipalities.  —  These  Roman 
towns  were  of  course  to  be  found  for  the  most  part  only  in  the 
south  and  along  the  Rhine.  North  of  the  Loire,  as  the  Franks 
took  gradually  to  city  life,  there  sprang  up  other  towns,  of  Ger- 
manic origin  and  character  ;  and  these  Avere  not  slow  to  agitate 
for  grants  of  special  privileges  from  their  baronial  masters. 
In  very  large  numbers  they  obtained  charters,  —  charters,  how- 
ever, which  were  to  give  them  a  connection  with  the  feudal 
system  about  them  which  the  towns  of  the  south,  antedating 
feudalism,  did  not  for  some  time  possess.  They  were  given 
substantial  privileges  of  self-government,  but  they  were  not 
severed  from  baronial  control.  They  conducted  their  affairs, 
on  the  contrary,  under  charters  in  which  the  relative  (cus- 
tomary) rights  of  both  seigneur  and  bourgeois  were  definitely 
ascertained,  by  which  seigneurial  authority  as  well  as  burgher 
privilege  was  fully  recognized,  and  under  which,  moreover, 
the  authority  of  the  seigneur  was  actually  exercised  through 
the  instrumentality  of  a  Prevot,  the  lord's  servant  and  repre- 
sentative in  city  affairs. 

This,  the  most  secure  form  of  municipal  self-government, 
because  the  form  which  was  most  naturally  integrated  with 
the  political  system  about  it,  —  a  form,  also,  which  very 
naturally  connected  itself,  mediately,  Avith  the  supreme  seig- 
neurial authority  of  the  king,  —  became  in  course  of  time  the 
prevalent,  indeed  the  almost  universal,  type  in  France.  The 


182 


THE  GOVERNMENT  OF  FRANCE. 


'  prevotal '  town  is  the  normal  town  down  to  the  end  of  the 
fifteenth  century. 

278.  Not  all  of  this  development,  of  course,  was  accom- 
plished peacefully  or  by  the  complaisance  of  the  barons.  Many 
cities  were  driven  to  defend  their  privileges  against  the  baron- 
age by  force  of  arms  ;  some,  unable  to  stand  out  unaided 
against  feudal  aggressions,  were  preserved  from  discomfiture 
only  by  succor  from  the  king,  whose  interest  it  served  to  use 
the  power  of  the  townsmen  to  check  the  insolent  might  of 
the  feudal  lords ;  others,  again,  were  repeatedly  constrained 
to  buy  in  hard  cash  from  neighbor  barons  a  grudging  toler- 
ance for  their  modest  immunities.  The  kings  profited  very 
shrewdly  by  the  liberties  of  the  towns,  drawing  the  towns- 
people very  closely  about  themselves  in  the  struggles  of  royal 
prerogative  against  baronial  privilege.  As  supreme  lords  in 
France,  they  assumed  to  make  special  grants  of  municipal 
citizenship :  they  made  frequent  gifts  of  bourgeoisie  to  disaf- 
fected vassals  of  the  barons,  —  gifts  so  frequently  made,  indeed, 
that  there  grew  up  a  special  class  of  royal  townsmen,  a  special 
bourgeoisie  du  roi. 

279.  The  Towns  and  the  Crusades.  —  Not  the  least  teiportant 
element  in  the  growth  of  separate  town  privileges  was  the  influence  of 
the  crusades  upon  the  power  of  the  nobility.  When  the  full  fervor  of 
crusading  was  upon  France,  her  feudal  nobility  were  ready  to  give  up 
anything  at  home  if  by  giving  it  up  they  might  be  enabled  to  go  to  the 
holy  wars,  to  the  prosecution  of  which  Mother  Church  was  so  warmly 
urging  them.  Their  great  need  was  money;  money  the  towns  had; 
and  for  money  they  bought  privileges  from  departing  crusaders.  Very 
often,  too,  their  one-time  lords  never  returned  from  Palestine  —  never 
came  back  to  resume  the  powers  so  hastily  and  eagerly  bartered  away 
before  their  departure.  When  they  did  return  they  returned  impover- 
ished, and  in  no  condition  of  fortune  to  compete  with  those  who  had 
husbanded  their  resources  at  home.  On  every  hand  opportunities  were 
made  for  the  perpetuation  of  town  privileges. 

280.  Municipal  Privileges.  —  The  privileges  extorted  or 
bought  by  the  sturdy  townspeople  were,  to  speak  in  general 


THE  GOVERNMENT  OF  FRANCE. 


183 


terms,  the  right  to  make  all  the  laws  which  concerned  only 
themselves,  the  right  to  administer  their  own  justice,  the 
right  to  raise  their  taxes  (as  well  those  demanded  by  king  or 
baron  as  those  which  they  imposed  upon  themselves  for  their 
own  purposes)  in  their  own  way,  and  the  right  to  discipline 
themselves  with  police  of  their  own  appointing.  Such  villages 
as  contrived  to  obtain  separate  privileges  could  of  course 
obtain  none  so  extensive  as  these.  They  often  had  to  seek 
justice  before  baronial  rather  than  before  their  own  tribunals, 
they  could  by  no  means  always  choose  their  own  way  of  paying 
unjust  charges,  they  had  often  to  submit  to  rough  discipline 
at  the  hands  of  prince's  retainers,  oftentimes  the  most  they 
could  secure  for  themselves  was  a  right  of  self-direction  in 
petty  matters  which  interested  only  themselves. 

The  administrative  functions  exercised  by  the  towns  have  been 
thus  summed  up :  the  administration  of  communal  property,  the  main- 
tenance of  streets  and  roads,  the  construction  of  public  edifices,  the 
support  and  direction  of  schools,  and  the  assessment  and  collection  of 
all  taxes.i 

The  Parliament  of  Paris  (sees.  293-296)  refused  to  recognize  exemp- 
tions from  municipal  charges  claimed  in  certain  cases  by  the  noblesse. 

281.  Forms  of  Town  Government.  —  The  forms  of  self- 
government  in  the  towns  varied  infinitely  in  detail,  according 
to  place  and  circumstance,  but  the  general  outline  was  almost 
everywhere  the  same.  Often  there  were  two  assemblies  which 
took  part  in  the  direction  of  municipal  affairs,  an  Assembly  of 
Notables  and  a  General  Assembly  of  citizens.  These  two 
bodies  did  not  stand  to  each  other  in  the  relation  of  two 
houses  of  a  single  legislature;  they  were  separate  not  only,  but 
had  also  distinct  functions.  The  popular  body  elected  the 
magistrates  ;  the  select  body  advised  the  magistrates ;  the  one 
was  a  legislative,  the  other  an  executive,  council.  More  com- 
monly, however,  there  was  but  one  assembly,  the  general 


1  Ferron,  p.  8. 


184 


THE  GOVERN]SIENT  OF  FRANCE. 


assembly  of  citizens,  ^vhich  elected  the  magistrates,  exercised 
a  critical  supervision  over  them,  and  passed  upon  all  important 
municipal  affairs.  The  magistracy  generally  consisted  of  a 
mayor  and  aldermen  who  acted  jointly  as  the  executive  of 
the  city  (its  coi'jys  de  ville),  the  mayor  in  most  cases  being  only 
the  president,  never  the  ^  chief  executive,'  of  the  corporation, 
and  mayor  and  aldermen  alike  being  equal  in  rank  and  in 
responsibility  in  exercising  their  corporate  functions. 

282.  Decay  or  Destruction  of  Municipal  Self-Government. 
—  From  this  democratic  model  there  were,  of  course,  in 
almost  all  cases,  frequent  departures,  quite  after  the  manner 
formulated  by  Aristotle  (sec.  1164).  Oligarchy  and  tyranny 
both  crept  in,  time  and  again;  nowhere  did  local  liberties 
permanently  preserve  their  first  vigor;  everywhere  real  self- 
government  sooner  or  later  succumbed  to  adverse  circum- 
stance, crushed  in  very  many  cases  by  the  overwhelming 
weight  of  the  royal  power.  Generally  such  changes  were 
wrought  rather  by  stress  of  disaster  from  without  than  because 
of  degeneracy  within :  and  in  very  few  cases  indeed  did  local 
liberty  die  before  the  community  which  had  sought  to  main- 
tain it  had  given  proof  of  a  capital  capacity  for  self-govern- 
ment. The  independence  of  the  cities  died  hard  and  has  left 
glorious  memories  behind  it. 

283.  Pays  d*Etats.  —  Earlier  times  had  seen  self-govern- 
ment in  the  provinces  also.  Every  province,  probably,  had 
had  its  own  'Estates,'  its  own  triple  assembly,  that  is,  of 
nobles,  clergy,  and  burghers,  which  met  to  discuss  and  in  large 
part,  no  doubt,  to  direct  provincial  affairs.  The  provinces 
with  estates  (2')ays  d-etats)  represent  one  sort  of  self-govern- 
ment, the  towns  and  communes  quite  another  sort.  The 
provinces  of  old  France,  thirty-six  in  number,  represented  sep- 
arate feudal  entities,  much  as  the  English  counties  did  (sec. 
655).  The  towns,  on  the  other  hand,  in  the  central  and 
northern  portions  of  France  at  least,  represented  nothing  but 
grants  of  privilege,  were  communities  which  had  been  given  a 


THR  GOVERNMENT  OF  FRANCE. 


185 


special  and  exceptional  place  in  the  feudal  order.  The  assem- 
blies of  the  provinces,  accordingly,  were  not  primary  or  demo- 
cratic like  those  of  the  towns,  but  were  made  up  by  ^  estates,^ — 
models  for  the  States-General  which  appeared  in  1302  (sees. 
288-289). 

The  provincial  Estates  were  probably  in  their  origin  nothing  else 
than  normal  feudal  councils,  made  up,  as  they  were,  of  representatives 
of  all  who  possessed  corporate  or  individual  privileges,  whose  judg- 
ments and  advice  feudal  dukes  and  counts  found  it  redound  to  their 
greater  peace  and  welfare  to  hear  and  heed. 

In  several  of  the  provinces,  as,  notably,  in  Languedoc  and 
Brittany,  these  provincial  Estates  continued  to  meet  and  to 
exercise  considerable  functions  down  to  the  time  of  the  Eevo- 
lution.  Such  provinces  came  to  be  distinguished  from  the 
others  as  pays  d^etats  (provinces  having  Estates),  and  it  is 
largely  from  the  privileges  of  their  assemblies  that  we  argue 
the  general  nature  of  the  powers  possessed  by  those  which 
had  passed  out  of  existence  before  history  could  catch  a 
glimpse  of  them.  We  see  the  Estates  of  the  pays  d'etats 
clearly  only  after  the  royal  power  has  bound  together  all  the 
provinces  alike  in  a  stringent  system  of  centralization;  they 
sit  only  at  the  king's  call ;  their  resolutions  must  be  taken  in 
the  presence  of  the  king's  provincial  officers  and  must  await 
the  regal  sanction ;  they  live  by  the  royal  favor  and  must  in 
all  things  yield  to  the  royal  will.  Nevertheless  their  privi- 
leges are  still  so  substantial  as  to  make  the  pays  d^etats  the 
envy  of  all  the  rest  of  France.  They  bought  of  the  crown 
the  advantage  of  themselves  collecting  the  taxes  demanded  by 
the  central  government ;  they  retained  to  the  last  the  riglit  to 
tax  themselves  for  the  expenses  of  local  administration  and  to 
undertake  and  carry  through  entirely  without  supervision  the 
extensive  improvements  in  roads  and  watercourses  to  which 
the  local  patriotism  bred  by  local  self-government  inclined 
them.  Restricted  as  their  sphere  was,  they  moved  freely 
within  it,  and  gave  to  their  provinces  a  vitality  and  a  pros- 


186 


THE  GOVERNMENT  OF  FRANCE. 


perity  such,  as  tlie  rest  of  France,  administered,  as  it  waTs, 
exclusively  from  Paris,  speedily  and  utterly  lost. 

284.  Functions  of  the  Provincial  Estates  in  Finance.  —  The 

Estates  apportioned  the  taxes  among  the  various  sub-divisions,  or  dis- 
tricts, of  the  province.  In  these  districts  there  were  assemblies,  nomi- 
nated by  and  subordinate  to  the  provincial  Estates,  which  apportioned 
the  taxes  in  their  turn  among  the  parishes.  The  parochial  oflBcers, 
last  of  all,  apportioned  the  taxes  among  individual  taxpayers. 

The  king  in  the  earlier  days  was  represented  in  the  Estates  by  a 
commissioner ;  but  the  aurtiority  of  the  chief  royal  agent  in  the  prov- 
ince was  one  of  supervision  merely,  not  one  of  command. 

285.  Territorial  Development  of  the  Monarchy.  — The 

process  of  the  organic  development  of  the  monarchy  began,  of 
course,  with  territorial  expansion  and  consolidation.  For  eight 
centuries  that  expansion  and  consolidation  went  steadily  on ; 
but  its  successful  completion  was  assured  before  the  extinction 
of  the  first,  the  direct,  line  of  Capets  in  1328.  Before  that 
date  Philip  Augustus  had  wrung  Normandy  from  England  and 
had  added  Vermandois,  Auvergne,  Touraine,  Anjou,  Maine, 
and  Poitou  to  the  dominions  of  his  crown,  and  his  successors 
had  so  well  carried  forward  the  work  of  expansion  that  before 
the  Valois  branch  came  into  the  succession  only  Flanders, 
Burgundy,  and  Brittany  broke  the  solidity  of  the  French 
power  in  the  north,  and  only  Aquitaine,  still  England's  fief, 
cut  France  off  from  her  wide  territories  in  the  southeast.  It 
had  been  the  mission  of  the  direct  line  of  the  Capets  to  lay 
broadly  and  irremovably  the  foundations  of  French  unity  and 
nationality,  and  they  had  accomplished  that  mission.  They 
gave  to  their  monarchy  the  momentum  which  was  afterwards 
to  carry  it  into  full  supremacy  over  Brittany,  Aquitaine,  and 
Burgundy,  over  the  Ehone  valley,  and  over  the  lands  which 
separated  her  from  the  Ehine. 

286.  The  Crusades  and  the  Monarchy.  —  The  monarchy,  even 
more  than  the  towns  (sec.  279),  profited  by  the  effects  of  the  crusades 
on  the  feudal  nobility.    So  great  was  the  loss  of  life  among  the  nobles. 


THE  GOVERNMENT  OF  FRANCE. 


187 


so  great  was  their  loss  of  fortune,  that  they  fell  an  easy  prey  to  the 
encroaching  monarchy.  During  the  first  crusades  the  French  kings 
stayed  at  home  and  reaped  the  advantages  which  the  nobles  lost ;  during 
the  last  crusades,  the  kings  were  strong  enough  themselves  to  leave 
home  and  indulge  in  holy  warfare  in  the  East,  without  too  great  appre- 
hension as  to  what  might  happen  to  the  royal  power  in  their  absence. 

287.  Institutional  Growth.  —  Of  course  along  with  terri- 
torial expansion  there  went  institutional  growth :  and  this 
growth  involved  in  large  part  the  destruction  of  local  liberties. 
The  amalgamation  of  France  into  a  single,  veritable  kingdom 
was  vastly  more  fatal  to  local  self-government  than  the 
anarchy  and  confusion  of  feudal  times  ha-d  been.  The  cities 
could  cope  with  neighbor  lords ;  and  during  the  period  of  con- 
test between  king  and  barons  they  could  count  oftentimes  upon 
assistance  from  the  king :  his  interests,  like  theirs,  lay  in  the 
direction  of  checking  baronial  power.  But  when  the  feudal 
lords  were  no  longer  to  be  feared,  the  towns  in  their  turn  felt 
the  jealousy  of  the  king;  and  against  his  overwhelming  power, 
when  once  it  was  established,  they  dared  not  raise  their  hands. 
The  ancient  provinces,  too,  had  in  the  earlier  days  found  ways 
of  bringing  local  lords  into  their  Estates,  in  which  the  right  of 
the  burghers  to  have  a  voice  in  the  government  was  recognized 
(sec.  283).  But  they  could  no  more  resist  the  centralization 
determined  upon  by  a  king  triumphant  over  all  feudal  rivals 
than  the  towns  could.  In  the  end,  as  we  have  seen,  the  pro- 
vincial assemblies,  where  they  managed  to  exist  at  all  in  the 
face  of  the  growing  power  of  the  Crown,  were,  like  all  other 
independe^it  authorities  of  the  later  time,  sadly  curtailed  in 
privilege,  and  at  the  last  almost  entirely  lost  heart  and  life. 

288.  The  States-General.  —  At  one  time,  indeed,  it  seemed 
as  if  the  nation,  in  being  drawn  close  about  the  throne,  was  to 
be  given  a  life  of  its  own  in  a  national  parliament.  Philip  the 
Fair  (1285-1314),  bent  upon  making  good  his  authority  against 
the  interference  of  the  Pope  in  certain  matters,  bethought 
himself  of  calling  representatives  of  the  nation  to  his  sup- 


188 


THE  GOVERNMENT  OF  FRANCE. 


port.  The  kings  of  France  had  already,  of  course,  often  taken 
the  advice  upon  public  affairs  of  the  baronage  or  of  the  clergy, 
each  of  which  orders  had  a  corporate  existence  and  organiza- 
tion of  its  own,  and  therefore  possessed  means  of  influential 
advising :  but  Philip  called  in  the  burghers  of  the  towns  also 
and  constituted  (1302)  that  States-General  (Etats-Generaux) 
ill  which  for  the  first  time  in  French  history  that  '  third  es- 
tate '  of  the  Commons  appears  which  in  later  times  was  to  thrust 
both  clergy  and  nobles  out  of  power  and  itself  rule  supreme  as 
^  the  people.' 

289.  Character  of  the  States-General.  —  The  first  States- 
General,  summoned  by  Philip  the  Fair,  reminds  one  not  a  little 
of  the  parliament  called  together  in  England  in  1295  by  Ed- 
ward 1.  (sees.  667,  669)  :  apparently  France  was  about  to  have 
a  parliament  such  as  England's  became,  a  representative  body, 
speaking,  and  at  the  end  of  every  important  contest  bringing 
to  pass,  the  will  of  the  nation.  But  for  France  this  first 
promise  was  not  fulfilled.  During  three  centuries,  the  four- 
teenth, fifteenth,  and  sixteenth  (1302-1614),  it  was  the  pleas- 
ure of  the  French  monarch  to  keep  alive,  at  first  by  frequent, 
and  later  by  occasional  summons,  this  assemblage  of  the  three 
Estates.  This  Avas  the  period  during  which  feudal  privileges 
were  giving  way  before  the  royal  prerogative,  and  it  was  often 
convenient  to  have  the  formal  sanction  of  the  Estates  at  the 
back  of  acts  of  sovereignty  on  the  part  of  the  Crown.  But 
after  the  full  establishment  of  the  regal  power  the  countenance 
of  the  Estates  was  no  longer  needed,  and  was  no  longer  asked. 
The  States-General  never,  moreover,  even  in  the  period  of  their 
greatest  activity,  became  a  legislative  authority.  For  one 
thing,  they  had  not  the  organization  proper,  not  to  say  neces- 
sary, for  the  exercise  of  power.  The  three  Estates,  the  Nobil- 
ity, the  Clergy,  and  the  Commons  (Tiers  Etat),  deliberated 
apart  from  each  other  as  separate  bodies ;  and  each  submitted 
its  own  list  of  grievances  and  suggestions  to  the  king.  They 
acted  often  in  harmony,  but  never  in  union ;  their  only  com- 


THE  GOVERNMENT  OF  FRANCE. 


189 


mon  meeting  was  the  first  of  each  session,  when  they  all  three 
assembled  in  the  same  hall  to  hear  a  formal  opening  speech 
from  the  throne.  They  never  acquired  the  right  to  be  con- 
sulted with  reference  to  that  cardinal  affair  of  politics,  taxa- 
tion ;  they  never  gained  the  right  to  sit  independently  of  royal 
summons.  They  were  encouraged  to  submit  what  suggestions 
they  chose  to  the  government  concerning  the  administration  of 
the  kingdom ;  and,  as  a  matter  of  fact,  their  counsels  were 
often  heeded  by  the  king.  But  they  never  got  beyond  advising  : 
never  won  the  right  to  expect  that  their  advice  would  be  taken. 

Their  sessions  did,  however,  so  long  as  they  continued,  contrib- 
ute to  keep  alive  a  serviceable  form  of  self-government  which 
at  least  held  the  nation  within  sight  of  substantial  liberties ; 
and  which,  above  all,  secured  national  recognition  for  that  'third 
estate,'  the  people,  whose  sturdiest  members,  the  burghers  of 
the  towns,  were  real  representatives  of  local  political  life. 

290.  Administrative  Development.  —  Of  course  along  with 
the  territorial  expansion  of  the  monarchy  by  annexation,  ab- 
sorption, and  conquest  there  went  also  great  administrative 
developments.  As  the  monarchy  grew,  the  instrumentalities 
of  government  grew  along  with  it :  possession  and  control 
advanced  hand  in  hand. 

291.  Growth  of  the  Central  Administration.  —  In  the  ear- 
lier periods  of  the  Capetian  rule  a  Feudal  Court  and  certain 
household  officers  constituted  a  sufficient  machinery  for  the 
central  administration.  There  was  a  Chancellor,  who  was  the 
king's  private  secretary  and  keeper  of  both  the  public  and  the 
private  records  of  the  court ;  a  Chamberlain,  who  was  superin- 
tendent of  the  household ;  a  Seneschal,  who  presided  in  the  king's 
name  and  stead  in  the  Feudal  Court,  and  who  represented  the 
king  in  the  direct  administration  of  justice ;  a  Great  Butler, 
who  was  manager  of  the  royal  property  and  revenues ;  and  a 
Constable,  who  was  commander  of  the  forces.  The  Feudal 
Court,  composed  of  the  chief  feudatories  of  the  Crown,  exer- 
cised the  functions  of  a  tribunal  of  justice  in  suits  between 


190 


THE  GOVERNMENT  OF  FRANCE. 


tenants  in  capite,  besides  the  functions  of  a  taxing  body  and 
of  an  administrative  council  (sees.  177,  184,  185). 

292.  The  Council  of  State.  —  So  long  as  '  France '  was  only 
a  duchy  and  the  real  territory  of  the  Crown  no  wider  than  the 
immediate  domain  of  the  Capetian  dukes,  the  weight  of  admin- 
istration fell  upon  the  officers  of  the  household,  and  the  Feudal 
Court  was  of  no  continuous  importance.  But  as  France  grew, 
the  household  officers  declined  and  the  Feudal  Court  advanced 
in  power  and  importance.  As  the  functions  of  the  Court  in- 
creased and  the  Court  became  a  directing  Council,  the  Council, 
of  course,  more  and  more  tended  to  fall  apart  into  committees, 
into  distinct  sections,  having  each  its  own  particular  part  of 
the  duties  once  common  to  the  whole  body  to  perform.  The 
earlier  Councils  exercised  without  distinction  functions  polit- 
ical, judicial,  and  iinancial,  and  their  differentiation,  though 
hurried  forward  by  monarchs  like  Louis  IX.,  was  not  given 
definite  completeness  until  1302  (the  year  of  the  first  States- 
General)  when,  by  an  ordinance  of  Philip  the  Fair,  their  polit- 
ical functions  were  assigned  to  the  body  which  was  to  retain 
the  name  Council  of  State,  their  judicial  functions  to  a  body 
which  was  to  bear  the  ancient  name  of  parliament  (and  which 
we  know  as  the  Parliament  of  Paris),  their  financial  functions  to 
a  Chamber  of  Accounts.  Alongside  of  the  Chamber  of  Accounts 
there  sprang  up  a  Chamber  of  Subsidies  which  concerned  itself 
with  taxation.  Into  these  bodies,  whose  activity  increased 
from  year  to  year,  the  old  officials  of  the  household  were 
speedily  absorbed,  the  Great  Butler,  for  instance,  becoming 
merely  the  president  of  the  Chamber  of  Accounts. 

293.  The  Parliament  of  Paris.  —  The  judicial  section  of  the 
Council  of  State  consisted  at  first,  of  course,  like  the  other  sections, 
like  the  whole  Council  indeed,  of  great  feudatories  of  the  Crown,  as 
well  as  of  administrative  experts  gradually  introduced.  More  and  more, 
however,  this  chief  tribunal  tended  to  become  exclusively  a  body  of 
technical  officials,  of  trained  jurists  and  experienced  lawyers,  the  law 
officers  and  advisers  of  the  Crown. 


THE  GOVERNMENT  OF  FRANCE. 


191 


294.  Departments  of  Administration.  —  The  Chamber  of 
Accounts  and  the  Parliament  of  Paris  presently  became  hard 
crystals,  separate  and  persistent  entities  in  the  public  organi- 
zation; but  differentiation  within  the  Council  of  State  con- 
tinued. The  Council  fell  into  departments.  By  an  ordinance 
of  1644  (issued  under  the  direction  of  Mazarin  during  the  in- 
fancy of  Louis  XIV.)  six  departments  of  administration  were 
created :  (1)  A  Cabinet  for  the  consideration  of  political  ques- 
tions, (2)  a  diplomatic  and  military  section,  (3)  a  judicial  sec- 
tion meant  to  serve  as  a  court  of  conflicts,  determining  disputes 
between  other  departments,  (4)  an  extraordinary  cassation,  or 
supreme  judicial,  department,  to  stand  at  the  head  of  the  ordi- 
nary courts  of  justice,  (5)  an  exchequer  section,  and  (6)  a  depart- 
ment of  correspondence,  or,  in  modern  phrase,  of  the  interior. 

295.  The  Ministerial  System.  —  The  departmental  organi- 
zation of  the  Council  of  State  represented,  however,  only  a 
new  ministerial  system  including  (1)  a  Chancellor,  who  acted 
as  president  of  the  judicial  committees  of  the  Council  (except 
the  cassation  department,  in  which  he  sat  as  an  ordinary  mem- 
ber),^ and  who  was  chief  of  the  system  by  means  of  which, 
through  a  Procureur- General  and  his  substitutes  throughout 
the  kingdom,  public  prosecution  was  conducted  and  the  cen- 
tral administration  represented  in  the  local  and  provincial 
courts ;  (2)  a  Comptroller-General  of  the  Finances,  who  was 
in  effect  Minister  of  the  Interior ;  (3)  a  Minister  of  the  Eoyal 
Household,  who  was  dispenser  of  those  most  potent  things, 
patronage  and  penalties,  and  who  was  virtually  minister  of 
religion  ;  (4)  a  Minister  of  War ;  (5)  a  Secretary  of  State  for 
Foreign  Affairs  ;  and  (6)  a  Secretary  of  State  for  Marine  and 
the  Colonies  (sec.  323). 

296.  Growth  of  Centralized  Local  Administration :  Louis 
IX.  —  The  expansion  of  the  central  organs  of  administration 

1  See  sec.  737  for  the  now  very  similar  position  of  the  English  Chancel- 
lor. See  the  same  section  on  the  English  Chancellor's  position  as  in  some 
sort  minister  of  justice. 


192 


THE  GOVERNMENT  OF  FRANCE. 


meant,  of  course,  that  the  royal  government  was  entering  more 
and  more  extensively  into  the  management  of  affairs  in  the  prov- 
inces, that  local  administration  was  being  centralized.  This  ex- 
tension of  centralized  local  administration  may  be  said  to  have 
begun  in  earnest  under  Louis  IX.  Louis  IX.  did  more  than  any  of 
his  predecessors  to  strengthen  the  grip  of  the  monarchy  upon  its 
dominions  by  means  of  direct  instrumentalities  of  government. 
He  was  a  man  able  to  see  justice  and  to  do  it,  to  fear  God  and 
yet  not  the  Church,  to  conquer  men  not  less  by  uprightness  of 
character  than  by  force  of  will  and  of  arms ;  and  his  character 
established  the  monarchy  in  its  power.  By  combined  strength 
and  even-handedness  he  bore  down  all  baronial  opposition; 
the  barons  subjected  to  his  will,  he  sent  royal  commissioners 
throughout  the  realm  to  discover  where  things  were  going 
amiss  and  where  men  needed  that  the  king  should  interfere ; 
he  established  the  right  of  appeal  to  his  own  courts,  even  from 
the  courts  of  the  barons,  thus  making  the  Parliament  of  Paris 
(sec.  293)  the  centre  of  the  judicial  system  of  the  country ; 
he  forced  limitations  of  power  upon  the  feudal  courts ;  he  for- 
bade and  in  part  prevented  judicial  combats  and  private  war- 
fare. He  drew  the  administration  of  the  law  in  France 
together  into  a  centralized  system  by  means  of  royal  Baillis 
and  Prevots,  whom  he  subordinated  to  the  Parliament  of  Paris. 

297.  Steps  of  Centralization.  —  It  is  not,  of  course,  to  be  under- 
stood that  Louis'  work  was  to  any  considerable  extent  a  work  of  crea- 
tion :  it  was  not,  but  rather  a  work  of  adaptation,  expansion,  systemati- 
zation.  The  system  which  he  perfected  had  been  slowly  growing  under 
his  predecessors.  The  bailli  was,  in  the  Middle  Ages,  a  very  common 
officer,  representing  king  or  seigneur,  as  the  case  might  be,  administer- 
ing justice  in  his  name,  commanding  his  men-at-arms,  managing  the 
finances,  caring,  indeed,  for  every  detail  of  administration.  At  first, 
it  is  said,  "  all  of  judicial,  financial,  and  military  administration  was  in 
his  hands,"  It  was  an  old  system  of  royal  baillis,  set  over  districts 
known  as  hailliages  (bailiwicks),  that  Louis  IX.  extended  and  regulated, 
keeping  an  eye  to  it,  however,  the  while,  that  the  haillis  should  be  made 
to  feel  their  dependence  upon  the  Crown  so  constantly  that  they  should 


THE  GOVERNMENT  OF  FRANCE. 


193 


per  force  remain  officials  and  not  dream  of  following  the  example  of 
dukes  and  counts,  and  becoming  independent  feudal  lords  on  their  own 
account. 

Subsequent  developments  effected  a  natural  differentiation  and 
specialization  in  the  office  of  bailli.  There  came  to  be,  on  the  one 
hand,  bailiffs  of  the  robe  {bailhs  du  robe)  charged  with  the  administra- 
tion of  justice,  and,  on  the  other  hand,  bailiffs  of  the  sword  {baillis 
d'e'pe'e)  charged  with  the  administration  of  military  affairs,  as  well  as 
more  and  more  numerous  lieutenants  to  the  various  baillis.  The  resi- 
dent baillis  and  prevots  (a  virtually  equivalent  title),  acting  under  gen- 
eral commission  to  see  that  the  king's  authority  was  recognized  and 
obeyed,  the  king's  taxes  collected,  etc.,  gradually  absorbed  almost  all 
administrative  power.  There  appeared  also,  in  the  course  of  these 
developments,  Treasurers-General  and  Receivers  of  Domains,  and  Cap- 
tains-General in  each  of  the  bailliages. 

The  old  office  of  Seneschal  (sec.  291)  became  merged  in  that  of 
Chief  Bailli  and  Pre'cot  of  Paris. 

298.  Personal  Government:  Louis  XIV. —  Such  measures  of 
course  tended  to  subordinate  all  local  magnates  to  the  king.  By  the 
policy  of  Louis  XIV.  this  tendency  was  completed :  the  whole  of  the 
nobility  of  France  were,  so  to  say,  merged  in  the  person  and  court  of 
the  king.  Louis  took  care  to  have  it  understood  that  no  man  who 
remained  upon  his  estate,  who  did  not  dance  constant  attendance  upon 
his  majesty,  the  king,  at  his  court,  to  add  to  its  brilliancy  and  servility, 
might  expect  anything  but  disfavor  and  loss.  He  made  of  the  great 
landed  nobility  a  court  nobility,  turning  men  from  interest  in  their 
tenants  and  their  estates  to  interest  in  court  intrigue  alone.  He  drew 
all  men  of  rank  and  ambition  to  himself,  merged  them  in  himself,  and 
left  nothing  between  the  monarchy  and  the  masses  whereby  the  ter- 
rible impact  of  the  great  revolution  which  was  to  come  might  be 
broken. 

299.  The  Completed  Centralization :  the  Intendant.  — 

Finally  came  the  completed  centralization  which  followed  the 
days  of  Richelieu,  whose  central  figure  was  the  Intendant,  a 
direct  appointee  and  agent  of  the  king  and  absolute  ruler  in 
every  province ;  and  whose  lesser  figures  were  the  sub-delegates 
of  the  Intendant,  rulers  in  every  district  and  commune.  The 
rule  of  these  agents  of  the  crown  almost  totally  extinguished 
the  separate  privileges  of  the  elected  magistrates  of  the  towns 


194 


THE  GOVERNMENT  OF  FRANCE. 


and  of  the  other  units  of  local  government.  In  many  places,  it 
is  true,  the  people  were  suffered  still  to  elect  their  magistrates 
as  before ;  but  the  usurping  activities  of  the  Intendant  and  his 
subordinates  speedily  left  elected  magistrates  with  nothing  to 
do.  In  other  cases  election  ceased;  the  crown  sold  the  local 
offices  as  life  estates  to  any  one  who  would  buy  for  cash. 

300.  The  Province  was  a  military,  not  a  civil,  administrative  dis- 
trict. The  Provinces  were  grouped  into  Generalities,  of  which  there  were 
in  all  thirty-two,  and  it  was  over  a  Generality  that  each  Intendant  ruled. 
Ecclesiastical  administration  was  served  by  still  another  distinct  division 
into  Dioceses. 

301.  The  Office  of  Intendant  is  said  to  have  originated  in  that  of 
Master  of  Accounts.  Masters  of  Accounts  rode  circuit  through  the 
provinces,  on  semi-judicial  errands  connected  with  the  revenue;  and 
in  later  times  their  functions  fell  to  an  officer  called  the  Intendant. 
The  Intendants  were  thus  properly  subordinates  of  the  Comptroller- 
General  of  the  Finances;  but  the  Comptroller-General  became  in  effect 
minister  of  the  interior,  charged  with  the  oversight  of  almost  all  affairs 
of  internal  administration,  and  the  Intendants  became  general  rulers 
over  the  Generalities. 

There  had  first  emerged,  in  Richelieu's  time,  Intendants  of  Justice 
and  Police  (sometimes  also  of  Finance),  who  had  "acted  in  all  those 
affairs,  civil  and  criminal,  which  the  king  wished  to  take  away  from 
the  ordinary  judges."  The  functions  of  the  full-fledged  Intendant  of 
later  times  are  thus  summed  up  by  Guizot:  they  were  "magistrates 
whom  the  king  sent  into  different  parts  of  the  kingdom  to  look  to  all 
that  concerned  the  administration  of  justice,  of  police,  and  of  the 
finances ;  to  maintain  good  order  and  to  execute  such  commissions  as 
the  king  or  his  council  laid  upon  them." 

From  the  moment  when  the  system  of  Intendants  was  fixed  upon 
the  country,  says  Ferron  (p.  14),  "  the  provincial  Estates  assembled 
only  upon  the  order  of  the  king;  the  duration  of  their  sessions  was 
fixed  at  forty  days.  All  their  important  deliberations,  the  whole  of 
their  receipts  and  expenditures,  were  subject  to  approval  by  decree  of 
the  council  of  the  king." 

302.  Judicial  Centralization. — The  local  tribunals  of  jus- 
tice in  like  manner  had  their  business  gradually  stolen  from 
them.    The  principle  of  appeal  established  by  Louis  IX.  at 


THE  GOVERNMENT  OF  FRANCE. 


195 


length  worked  its  perfect  work.  Every  case  in  which  any 
interest  cared  for  from  Paris  (and  what  interest  was  not?) 
was  either  actually  or  by  pretence  involved  was  '  evoked '  to 
special  courts  set  up  by  royal  commission.  Xo  detail  was  too 
insignificant  to  come  within  the  usurpations  of  the  king's 
government. 

303.  The  Royal  Council  and  the  Comptroller-General.  — 

The  Royal  Council  at  Paris  regulated,  by  'orders  in  council/ 
every  interest,  great  or  small,  in  the  whole  kingdom.  The 
Comptroller-General,  acting  through  the  Intendants  and  their 
sub-delegates,  and  through  the  royal  tribunals,  managed  Prance. 
Everybody's  affairs  were  submitted  to  him,  and  through  him 
to  the  Royal  Council;  and  everybody  received  suggestions 
from  Paris  touching  his  affairs.  No  labor  of  supervision  was 
too  overwhelming  for  the  central  government  to  undertake. 
Interference  in  local  affairs,  made  progressively  more  and 
more  systematic,  more  and  more  minute  and  inquisitive,  re- 
sulted, of  course,  in  the  complete  strangulation  of  local  gov- 
ernment. All  vitality  ran  to  the  veins  of  the  central  organism, 
and,  except  for  the  lingering  and  treasured  privileges  of  the 
pays  d^etats,  and  for  here  and  there  a  persistent  form  of  town 
life,  France  lay  in  the  pigeon-holes  of  a  bureau.  Tahla  rasa 
had  been  made  of  the  historical  elements  of  local  government. 

304.  The  Spirit  of  the  Administration.  —  This  busy  supervision 
of  local  and  individual  interests  was  always  paternal  in  intent;  and  the 
intentions  of  the  central  power  were  never  more  benevolent  than  just 
when  the  Revolution  was  beginning  to  draw  on  apace.  "  The  royal 
government  was  generally  willing  in  the  latter  half  of  the  eighteenth 
century  to  redress  a  given  case  of  abuse,  but  it  never  felt  itself  strong 
enough,  or  had  leisure  enough,  to  deal  with  the  general  source  from 
which  the  particular  grievance  sprang."  i 

305.  The  Revolution.  —  This  whole  fabric  of  government 
went  to  pieces  in  the  storm  of  the  Revolution.    But  the  revo- 

1  Mr.  John  Morley's  Miscellanies,  Vol.  II.  (last  Macmillan  edition), 
essay  on  "Turgot,"  p.  138. 


196 


THE  GOVEHNMENT  OE  FRANCE. 


lutionistSj  wlien  their  stupendous  work  of  destruction  had  been 
accomplished,  were  under  the  same  necessity  to  govern  that 
had  rested  upon  the  monarch  whom  they  had  dethroned  and 
executed;  and  they  very  soon  proved  themselves  unable  to 
improve  much  on  the  old  patterns  of  government.  In  denial 
of  the  indefeasible  sovereignty  of  the  king,  they  proclaimed, 
with  huzzahs,  the  absolute  sovereignty  of  the  people  ;  but  As- 
sembly and  Convention  could  do  no  more  than  arrogate  all 
power  to  themselves,  as  the  people's  representatives,  and  seek 
to  reign  in  the  king's  stead  through  the  king's  old  instrumen- 
talities. They  gave  voice  to  a  new  conception,  but  they  could 
not  devise  a  new  frame  of  administration.  The  result  was 
confusion.  Committees,  the  Terror,  —  and  Napoleon. 

306.  Administrative  Work  of  the  Revolution.  —  The  Rev- 
olution removed  all  the  foundations  of  French  politics,  but 
scarcely  any  of  the  foundations  of  French  administration. 
The  Constituent  Assembly  enacted  in  1791  that  there  should 
be  six  ministries,  namely,  of  Justice,  the  Interior,  Finance, 
War,  Marine,  and  Foreign  Affairs.  In  1794  the  ministries 
were  abolished  and  twelve  executive  commissions  substituted 
which  were  to  act  under  the  direction  of  the  now  execrated 
Committee  of  Public  Safety.  With  the  Directory,  however, 
(1795),  the  ministries  came  again  into  existence. 

307.  The  Reconstruction  by  Napoleon.  —  The  interests  of 
the  royal  administration  had  of  course  centred  in  the  general 
government,  rather  than  in  its  local  parts,  —  in  patronage,  in 
the  aggregate  national  power  and  prosperity,  in  finance.  The 
true  interests  of  republican  government,  on  the  other  hand,  cen- 
tre in  thorough  local  development :  republican  work,  properly 
done,  ought  to  tend  to  broaden  and  diversify  administrative 
work  by  diversifying  political  life  and  quickening  self -directive 
administrative  agencies.  But  this  the  leaders  of  the  Revo- 
lution neither  saw  nor  could  do ;  and  Napoleon,  whom  they 
created,  of  course  made  no  effort  to  serve  republican  develop- 
ment. 


THE  GOVERNMENT  OF  FRANCE.  197 

308.  Napoleon  simply  reorganized  despotism.  In  doing  so, 
however,  he  did  scarcely  more  than  carry  into  effect  the  prin- 
cipal purposes  of  the  Constituent  Assembly.  The  legislation 
of  that  Assembly  had  sought,  not  to  shatter  centralization,  but 
to  simplify  and  systematize  it ;  and  it  was  this  purpose  that 
Napoleon  carried  out.  For  the  Convention  and  Assembly,  as 
representatives  of  the  nation's  sovereignty,  he  substituted  him- 
self;  and  then  he  proceeded  to  give  to  centralization  a  per- 
fected machinery.  The  Convention  and  Assembly  had  en- 
deavored to  direct  affairs  through  Committees,  Commissions, 
Councils,  Directories, — through  executive  hoards,  in  a  word. 
For  such  instrumentalities  Napoleon  substituted  single  officers 
as  depositaries  of  the  several  distinct  functions  of  adminis- 
tration ;  though  he  was  content  to  associate  with  these  officers 
advisory  councils,  whose  advice  they  might  ask,  but  might  take 
only  on  their  own  individual  responsibility.  "  '  To  give  advice 
is  the  province  of  several,  to  administer,  that  of  individuals,' 
says  the  maxim  which  he  engraved  on  the  pediment  of  the  ad- 
ministrative arrangements  of  France,"  ^  to  remain  there  to  the 
present  day.  The  Constituent  Assembly,  willing  to  obliterate 
the  old  Provinces  of  France,  with  their  memories  of  feudal  privi- 
lege, and  the  Generalities,  with  their  ancient  savor  of  absolu- 
tism, had  redivided  the  country,  as  symmetrically  as  possible, 
into  eighty-nine  Departments ;  and  it  was  upon  this  territorial 
framework  that  Napoleon  superimposed  a  machinery  of  Pre- 
fects and  sub-prefects,  modelled,  with  simplifications  and  im- 
provements of  method,  upon  the  system  of  Intendants  and 
delegates  of  the  old  regime.  This  he .  accomplished  in  that 
celebrated  "  Constitution  of  the  Year  YIII "  which  still  lies 
almost  undisturbed  at  the  foundation  of  French  administration. 
The  Revolution  had  resulted  in  imparting  to  centralization 
what  it  never  had  before ;  namely,  assured  order  and  effective 
system. 

1  Marquardsen's  Handbuch,  Lebon's  monograph  on  France,  p.  78. 


198 


THE  GOVERNMENT  OF  FRANCE. 


Since  the  war  between  France  and  Germany  in  1870-'l,  the  Depart- 
ments of  France  have  numbered  only  eighty-six,  the  loss  of  Alsace 
and  Lorraine  having  subtracted  tliree  Departments. 

309.  Advances  towards  Liberal  Institutions.  —  Neverthe- 
less, the  Eevolution  had  asserted  a  new  principle  of  rule,  and 
every  change  of  government  which  has  taken  place  in  France 
since  the  Eevolution  has  pushed  her,  however  violently, 
towards  genuine  representative  institutions  and  real  republi- 
canism. Louis  XYIIL,  though  he  persisted  in  holding  to  the 
divine  right  of  kings  and  in  retaining  for  himself  and  his 
ministers  an  exclusive  right  of  initiative  in  legislation,  as- 
sented to  the  establishment  of  a  parliament  of  two  houses  and 
conceded  to  it  ministerial  responsibilit}^  Louis  Philippe  aban- 
doned the  delusion  of  the  'divine  right,'  acknowledged  the 
sovereignty  of  the  people,  and  shared  with  the  chambers  the 
right  of  initiative  in  legislation.  With  Napoleon  III.  came  reac- 
tion and  a  return  to  a  system  like  that  of  the  first  Napoleon ; 
but  even  Napoleon  III.  had  consented  to  return  to  the  practice 
of  ministerial  responsibility  before  the  war  with  Germany 
swept  him  from  his  throne  and  gave  birth  to  the  present 
Kepublic. 

310.  The  Third  Republic.  —  The  Third  Eepublic  was  pro- 
claimed in  Paris  by  G-ambetta  on  the  4th  September,  1870. 
Its  government  was  at  first  provisional,  the  war  with  Germany 
being  still  in  progress.  On  the  8th  Februar}',  1871,  a  national 
assembly  was  chosen,  bj^  universal  suffrage,  to  fix  upon  terms 
of  peace  with  Germany :  and  it  was  as  agent  of  this  assembly 
that  M.  Thiers  concluded  the  treaty  which  saved  Belfort  and 
was  soon  to  rid  French  territory  of  German  troops. 

311.  The  Framing  of  the  Constitution.  —  But  the  assembly 
deliberately  outlived  its  commission  as  peace-concluder,  and 
continued  to  direct  the  affairs  of  the  countr}^  till  February, 
1876,  ending  by  assuming  the  functions  of  a  constituent  as- 
sembly and  framing  a  permanent  constitution.  The  present 
constitution  was,  therefore,  adopted  by  this  assembly  on  the 


THE  GOVERNMENT  OF  FRANCE. 


199 


25th  February,  1875.  It  went  into  operation  one  year  later, 
in  February,  1876.  It  gave  to  the  government  of  the  country 
substantially  the  organization  which  had  been  improvised  by 
the  assembly  which  framed  it  while  the  negotiations  with  Ger- 
many were  in  progress  and  while  the  terrible  uprising  of  the 
Commune  in  Paris  was  being  suppressed.  As  the  assembly 
had  governed  while  bringing  order  out  of  the  chaos  of  the  war- 
time, so,  that  same  assembly  concluded,  should  the  country 
continue  to  be  governed  after  the  adjournment  of  its  self-con- 
stituted rulers.  The  assembly  had  governed,  at  first  through 
a  President  of  the  Kepublic  elected  by  itself,  who  met  the  as- 
sembly at  its  sessions  as  a  responsible  minister,  and  held  office 
by  their  continued  favor.  Later  it  directed  affairs  through  a 
cabinet  of  responsible  ministers  appointed  by  a  President  elected 
as  before,  by  the  assembly,  but  with  no  right  to  take  part  in 
the  deliberations  of  the  assembly,  except  through  the  ministers, 
and  given  a  definite  term  of  seven  years.  This  latter  practice 
they  embodied  in  the  new  constitution  which  they  at  last  reluc- 
tantly adopted. 

The  persistence  of  the  assembly  in  holding  on  to  a  governing  power 
not  contemplated  in  the  commission  it  had  received  from  the  country  as 
peace-maker  only,  and  its  reluctance  in  giving  to  the  country  a  regular 
government  which  should  supersede  this  unwarranted  provisional  sys- 
tem of  its  own,  are  easily  explained  by  the  composition  of  the  assembly. 
Singularly  enough,  considering  the  posture  of  affairs  at  the  time  of  the 
elections  (1871),  a  majority  of  the  members  of  the  assembly  was  com- 
posed of  partisans  of  a  monarchical  form  of  government.  Had  there  not 
been  disunion  among  them,  the  monarchists  could  easily  have  outvoted 
the  republican  members.  But  the  monarchical  majority  was  made  up 
of  three  irreconcilable  factions :  Legitimists,  who  favored  the  restoration 
of  the  elder  Bourbon  line,  Orle'anists,  who  wanted  the  younger  line 
(the  Orleans  branch)  brought  back  to  the  throne,  and  Bonapartists, 
who  wished  to  see  the  Empire  re-established.  These  factions  were  able 
to  agree  upon  nothing  but  this,  that  it  would  be  dangerous  to  leave 
the  making  of  a  constitution  to  another  assembly  which  might  have  a 
republican  majority.  They  clung  to  power,  therefore,  in  hopes  of  being 
able  to  agree  upon  some  sort  of  a  monarchy.    But  the  agreement  never 


200 


THE  GOVERNMENT  OF  FRANCE. 


came,  and  they  had  at  last  to  frame  a  constitution  as  conservative  as 
they  dared  make  in  face  of  a  country  unmistakably  determined  upon 
republicanism.  But  they  invested  Marshal  MacMahon  with  the  presi- 
dential power  for  a  term  of  seven  years,  and  provided  that  there  should 
be  no  president  elected  under  the  new  constitution  until  his  term  had 
expired,  MacMahon  was  at  once  a  patriotic  soldier  and  a  partisan  of 
monarchy.  It  was  hoped  that  he  might  be  able  to  keep  the  chief  ex- 
ecutive place  of  the  nation  warm  for  some  sovereign  to  be  afterwards 
agreed  upon,  and  enthroned  by  coup  d'etat.  These  calculations,  how- 
ever, miscarried.  Before  his  terra  was  out  (January,  1879)  MacMahon 
was  forced  by  the  Chambers  to  resign,  a  President  was  elected  under 
the  new  order  of  things,  and  all  the  plans  of  the  monarchical  parties 
were  again  at  sixes  and  sevens. 

312.  Character  of  the  Constitution.  —  The  provisions  of 
the  Constitution  are  comparatively  few  and  simple.  It  lays 
down  certain  main  lines  of  organization,  and  leaves  the  rest 
to  be  done  by  ordinary  statute.  In  practice,  even  the  prece- 
dents of  previous  constitutions  have  been  suffered  to  have  a 
part  in  supplementing  it.  So  much  of  former  constitutional 
law  as  is  not  incompatible  with  the  laws  of  the  new  republic 
is  considered  to  be  still  in  force.  There  has  thus  been  no 
absolute  break  with  the  past,  but  only  a  new  construction  on 
its  foundations. 

313.  The  Sovereignty  of  the  Chambers.  — It  is  noteworthy 
that  the  Constitution  itself  differs  from  an  ordinary  statute 
only  in  having  its  amendment  surrounded  by  certain  differ- 
ences of  legislative  procedure.  It  was  framed  and  promul- 
gated by  a  legislature,  —  the  provisional  national  assembly 
already  spoken  of  (sec.  310),  —  and  went  into  force  without 
being  submitted  to  a  vote  of  the  people  ;  and  it  can  be  changed 
or  altogether  abrogated  by  the  Legislature  which  it  called  into 
existence,  if  only  the  two  Houses  of  that  Legislature  act  in  the 
matter  jointly,  as  a  National  Assembly,  and  not  separately  as 
ordinary  legislative  chambers.  The  Legislature  is,  besides, 
the  only  body  competent  to  pass  upon  the  constitutionality  or 
unconstitutionality  of  legislation,  —  the  only  authoritative  in- 


THE  GOVERNMENT  OF  FRANCE. 


201 


terpreter  of  the  Constitution.  France,  like  England,  vests  in 
her  parliament  a  complete  sovereignty  of  discretion  as  to  its 
own  acts. 

The  principal  difference  between  the  two  cases  is,  that  the  English 
Parliament  may  exercise  all  its  powers  in  the  same  way,  by  ordinary 
procedure,  while  the  French  Chambers  are  put  under  certain  limitations 
of  procedure  in  the  exercise  of  their  sovereignty  as  it  affects  funda- 
mental law  (sec.  318). 

314.  The  Senate.  —  This  sovereign  parliament  consists  of 
two  Houses,  a  Senate  and  a  Chamber  of  Deputies.  The  Con- 
stitution says  nothing  as  to  the  composition  of  either  of  these 
bodies ;  in  the  case  of  the  Senate,  it  is  silent  even  as  to  the 
manner  of  its  election ;  so  far  as  its  provisions  are  concerned, 
the  Senate  might  be  constituted  by  executive  appointment,  or 
by  lot.  By  statute,  however,  the  Senate  has  been  made  to 
consist  of  three  hundred  members  chosen  by  ^electoral  col- 
leges '  specially  constituted  for  the  purpose  in  the  several  De- 
partments, and  the  term  of  senatorship  has  been  fixed  at  nine 
years.  Forty  years  has  been  declared  the  minimum  age  for 
senators.  The  electoral  college  for  the  choice  of  senators  is 
composed  in  each  Department  of  the  deputies  from  the  Depart- 
ment, the  members  of  the  '  General  Council '  of  the  Department 
(sec.  341),  and  the  members  of  the  Councils  of  its  several  Ar- 
rondissements  (sec.  347),  together  with  certain  delegates  chosen 
by  the  Communes  from  the  membership  of  the  communal  or 
municipal  Councils  (sec.  351).  One-third  of  the  membership 
of  the  Senate  is  renewed  every  three  years. 

Just  as  one-third  of  the  Senate  of  the  United  States  is  renewed  every 
two  years.  Most  European  constitutions  have  adopted  some  such 
method  of  partial  renewal  of  certain  representative  bodies  at  intervals 
shorter  than  the  term  of  membership. 

Until  1884  seventy-five  of  the  senators  were  chosen,  by  the  Senate 
itself,  for  life.  By  virtue  of  a  constitutional  change  effected  in  1884, 
all  vacancies  occurring  in  these  life-memberships  are  now  filled  by  elec- 
tion in  the  Departments,  as  other  seats  are,  and  for  the  usual  term  of 


202 


THE  GOVERNMENT  OF  FRANCE. 


nine  years.  This  process  will  in  time,  of  course,  do  away  with  all  life- 
membership. 

Legislation  determines  from  time  to  time  how  many  senators  shall 
be  elected  by  each  Department.  According  to  the  present  distribution 
thirty,  or  one-tenth  of  the  whole  number,  are  returned  by  the  city  of 
Paris,  which  itself  constitutes  a  Department. 

315.  The  Chamber  of  Deputies.  —  Of  the  choice  of  mem- 
bers of  the  Chamber  of  Deputies,  the  Constitution  says  no 
more  than  that  they  shall  be  elected  by  universal  suffrage. 
Statute  law  has  organized  the  Chamber  on  the  basis  of  one 
deputy  to  every  seventy  thousand  inhabitants.  Deputies 
must  be  at  least  twenty-five  years  of  age,  and  their  term, 
unless  the  Chamber  be  sooner  dissolved,  is  four  years.  The 
Department  is  the  basis  of  representation  in  the  Chamber  as  in 
the  Senate.  To  each  Department  is  assigned  a  certain  number 
of  deputies,  according  to  its  population ;  every  Department,  how- 
ever, whatever  its  population,  being  entitled  to  at  least  three 
representatives  in  the  Chamber.  The  deputies  are  elected  not 
*  at  large '  for  the  whole  Department,  that  is,  on  a  general  ticket, 
but  by  districts,  as  members  of  our  federal  House  of  Repre- 
sentatives are  chosen  in  the  States  (sec.  1066).  The  Arrondisse- 
ments  serve  as  ^congressional  districts,'  as  we  should  call  them, 
—  and  this  method  of  voting  is  accordingly  known  in  France 
as  scruHn  arrondissement. 

In  1885  the  system  of  voting  for  deputies  in  each  Department  on  a 
general  ticket,  as  we  vote  for  presidential  electors  in  the  States,  was 
introduced,  being  called  scrutin  de  liste.  It  was  adopted  at  the  sugges- 
tion of  Gambetta,  who  thought  that  a  system  of  general  tickets  would 
give  his  party  a  freer  sweep  of  popular  majorities.  But  in  1889  scrutin 
d'arrondissement,  which  had  been  in  use  before  1885,  was  re-established, 
because  scrutin  de  liste  had  given  too  free  a  sweep  to  the  popular 
majorities  of  General  Boulanger, 

The  principal  colonies,  too,  are  entitled  to  representation  in 
the  Chamber.  Algiers  sends  five  deputies  ;  Cochin-China,  Gua- 
deloupe, Guyana,  India,  Martinique,  Eeunion,  and  Senegal  each 
send  one.    All  counted,  there  are  five  hundred  and  eighty-four 


THE  GOVERNMENT  OF  FRANCE. 


203 


deputies.  Elections  to  the  Chamber  do  not  take  place  at  reg- 
ular intervals  and  on  fixed  dates  named  by  statute,  but  must 
be  ordered  by  decree  from  the  President  of  the  Eepublic  in  each 
case.  The  la^v  directs,  however,  that  the  President  must  order 
an  election  within  sixty  days,  or  in  case  of  a  dissolution,  within 
two  months  after  the  expiration  of  a  term  of  the  Chamber; 
and  that  the  new  Chamber  must  come  together  within  the  ten 
days  following  the  election.  At  least  twenty  days  must  sepa- 
rate decree  and  day  of  election. 

316.  In  Case  of  Usurpation.  —  In  case  the  Chambers  should  be 
illegally  dissolved  or  hindered  from  assembling,  the  General  Councils 
of  the  Departments  are  to  convene  -without  delay  in  their  respective 
places  of  meeting  and  take  the  necessary  steps  for  preserving  order  and 
quiet.  Each  Council  is  to  choose  two  delegates  to  join  delegates  from 
the  other  Councils  in  assembling  at  the  place  whither  the  members  of 
the  legal  government  and  the  regular  representatives  of  the  people  who 
have  escaped  the  tyranny  have  betaken  themselves.  The  extraordinary 
assembly  thus  brought  together  is  authorized  to  constitute  itself  for 
business  when  half  the  Departments  shall  be  represented ;  and  it  may 
take  any  steps  that  may  be  necessary  to  maintain  order,  administer 
affairs,  and  establish  the  independence  of  the  regular  Chambers.  It  is 
dissolved,  ipso  facto,  so  soon  as  the  regular  Chambers  can  come  together 
somewhere  within  the  state.  If  that  be  not  possible,  it  is  to  order  a 
general  election,  within  one  month  after  its  own  assembling. 

317.  The  National  Assembly :  its  Functions.  —  The  Senate 
and  Chamber  of  Deputies  meet  together  in  joint  session  as  a 
National  Assembly  for  two  purposes  :  the  revision  of  the  Con- 
stitution and  the  election  of  the  President  of  the  Republic. 
The  Houses  meet  for  the  performance  of  their  ordinary  legis- 
lative functions  in  Paris ;  as  a  National  Assembly  they  meet 
in  Versailles,  apart  from  the  exciting  influences  of  the  great 
capital,  which  has  led  so  many  assemblies  captive.  Whether 
met  for  the  election  of  the  President  or  for  the  revision  of  the 
Constitution,  the  National  Assembly  must  do  the  single  thing 
which  it  has  convened  to  do  and  then  at  once  adjourn.  For 
the  election  of  the  President  there  are  clearly  determined  times : 


204 


THE  GOVERNMENT  OF  FRANCE. 


whenever  the  office  of  President  falls  vacant,  whether  by  the 
death  or  resignation  of  the  President  or  by  the  expiration  of 
his  term. 

318.  Revision  of  the  Constitution.  —  A  revision  of  the 
Constitution  may  take  place  whenever  the  two  Houses  are 
agreed  that  revision  is  necessary.  It  has,  thus  far,  been  cus- 
tomary for  the  Houses  to  consider  separately  beforehand  not 
only  the  propriety  of  a  revision,  but  also  the  particular  points 
at  which  revision  is  necessary  and  the  lines  on  which  it  should 
proceed ;  and  to  know  each  other's  minds  on  these  important 
heads  before  agreeing  to  a  National  Assembly.  *  Alike  for  the 
election  of  a  President  and  for  the  adoption  of  constitutional 
amendments  an  absolute  majority  vote  suffices. 

It  might  easily  happen,  therefore,  that  the  majority  in  one  of  the 
Houses  would  be  outvoted  on  joint  ballot  in  National  Assembly.  If 
such  were  likely  to  be  the  case,  that  majority  could  hardly  be  expected 
to  consent  readily  to  a  joint  session.  France  has,  not  two,  but  many 
national  parties,  and  it  is  not  always  possible  to  effect  the  same  com- 
bination of  factions  in  support  of  a  ministry  in  both  the  Houses.  Cases 
must  frequently  arise  in  which  a  joint  vote  of  the  two  Houses  upon  a 
particular  measure  would  carry  with  it  defeat  to  the  policy  preferred  in 
one  of  them. 

The  National  Assembly  is  the  most  completely  sovereign 
body  known  to  the  Constitution,  there  being  but  one  thing  it 
cannot  do  under  existing  law :  it  cannot  sit  as  long  as  it  pleases. 
Its  sessions  must  not  exceed  in  length  the  duration  of  an  ordi- 
nary legislative  session  (five  months). 

The  officers  of  the  Senate  act  as  officers  of  the  National  Assembly. 
They  consist  of  a  President,  four  Vice-Presidents,  six  Secretaries,  and 
four  QuEestors,  elected  for  one  year.  The  Chamber  of  Deputies  has 
the  same  offices,  with  the  addition  of  two  more  secretaryships. 

319.  The  President  of  the  Republic.  — The  president,  elected 
by  the  joint  ballot  of  the  Chambers,  is  titular  head  of  the  Ex- 
ecutive of  France.  His  term  of  office  is  seven  years.  He  has 
the  power  of  appointing  and  removing  all  officers  of  the  public 


THE  GOVERNIVIENT  OF  FRANCE. 


205 


service.  He  has  no  veto  on  legislation,  but  he  is  authorized  to 
demand  a  reconsideration  of  any  measure  by  the  Houses ;  he 
can  adjourn  the  Chambers  at  any  time  (though  not  more  than 
twice  during  the  same  session)  for  any  period  not  exceeding 
one  month ;  he  can  close  a  regular  session  of  the  Houses  at  his 
discretion  after  it  has  continued  five  months,  and  an  extra  ses- 
sion when  he  pleases  ;  and  he  can,  with  the  consent  of  the 
Senate,  dissolve  the  Chamber  of  Deputies,  even  before  the 
expiration  of  five  months.  A  dissolution  of  the  Chamber  of 
Deputies  puts  an  end  also  of  course  to  the  sessions,  though 
not  to  the  life,  of  the  Senate,  inasmuch  as  it  cannot  act  with- 
out the  Chamber.  In  the  event  of  a  dissolution,  as  has  been 
said,  the  President  must  order  a  new  election  to  be  held  within 
two  months  thereafter,  and  the  Houses  must  convene  within 
ten  days  after  the  election. 

The  only  limitation  put  by  the  constitution  upon  the  choice  of  the 
National  Assembly  in  electing  a  President  of  the  Republic  is,  that  no 
one  shall  be  chosen  President  who  is  a  member  of  any  family  which  has 
occupied  the  throne  of  France. 

320.  The  President's  power  of  dissolving  the  Chamber  might,  on 
occasion,  be  used  to  bar  even  the  proceedings  of  the  National  Assembly. 
The  consent  of  the  Senate  having  been  obtained,  the  President  could 
dissolve  the  Chamber  while  the  National  Assembly  was  in  session,  and 
so  deprive  that  body  of  two-thirds  of  its  members,  leaving  it  without 
that  '  absolute  majority,'  lacking  which  it  can  take  no  authoritative 
action.  Such  a  course  would,  however,  be  clearly  revolutionary, — 
more  revolutionary  than  any  action  of  the  Assembly  that  it  might  be 
used  to  prevent, — and  would,  though  perhaps  technically  defensible, 
have  no  real  sanction  of  law. 

321.  Influence  of  President  and  Senate.  —  The  President  and 
Senate,  it  will  be  seen,  are  given  a  really  very  great  power  of  control 
over  the  Chamber  of  Deputies.  It  is  within  the  choice  of  the  President 
to  moderate  the  excesses  of  the  Chamber  by  returning  bills  to  it  for 
reconsideration,  or  by  adjourning  it  during  a  period  of  too  great  excite- 
ment ;  and  it  is  within  the  choice  of  the  President  and  Senate  acting 
together  to  appeal  from  its  decisions  to  the  constituencies  by  a  disso- 
lution.   The  Senate,  moreover,  has  been  given  so  many  members  of 


206 


THE  GOVERNMENT  OF  FRANCE. 


real  weight  of  character  and  distinction  of  career  that  it  would  seem  to 
have  been  in  a  position  to  act  in  restraint  of  the  Chamber  with  firmness 
and  success.  But  the  later  presidents  (Grevj  and  Carnot)  have  been 
men  of  so  little  force  and  the  Senate  has  played  so  timid  a  part  in 
affairs  that  this  position  of  advantage  has  been  altogether  sacrificed ; 
and  the  unbridled  license  of  the  Chamber  now  (April,  1889)  constitutes 
one  of  the  chief  menaces  to  the  success  and  even  a  menace  to  the 
existence  of  the  Republic, 

322.  The  Cabinet  and  the  Council  of  Ministers.  —  A  Cabi- 
net of  ministers  constitutes  a  link  between  the  President  and 
the  Chambers :  and  the  political  functions  of  this  Cabinet  are 
amongst  the  central  features  of  government  in  France.  It  is 
to  be  carefully  distinguished  from  the  Council  of  ministers ; 
both  the  Cabinet  and  the  Council  consist  of  the  same  persons ; 
but  the  Cabinet  is  a  political  body  exclusively,  while  the 
Council  has  only  administrative  functions.  The  distinction 
illustrates  pointedly  the  double  capacity  of  the  ministers. 

323.  The  Ministries.  —  There  are  now  eleven  ministers  :  the  Minis- 
ter of  Justice,  filling  the  office  filled  before  the  Revolution  by  the  Chan- 
cellor (sec.  295)  ;  the  Minister  of  Finance,  who  has  taken  the  place  of 
the  Comptroller-General  of  ante-revolutionary  days  (sees.  295,  300, 
303)  ;  the  Minister  of  War,  who  acts  as  head  of  the  administrative  de- 
partment created  in  the  time  of  Mazarin  (1644) ;  the  Minister  of  Marine 
and  the  Colonies  (1644)  ;  the  Minister  of  Foreign  Affairs  (1644,  see  sec. 
294)  ;  the  Minister  of  the  Interior,  an  office  created  by  the  Constituent 
Assembly  in  1791  (sec.  306),  by  a  consolidation  of  the  pre-revolutionary 
offices  of  Comptroller-General  and  Minister  of  the  Royal  Household,  ex- 
cept so  far  as  the  functions  of  the  Comptroller-General  were  financial 
and  bestowed  upon  the  Minister  of  Finance  (sec.  295)  ;  the  Minister  of 
Public  Instruction  (1848),  BeJigion  (1848),  and  the  Fine  Arts;  the  Minis- 
ter of  Public  Worhs ;  the  Minister  of  Agriculture  (an  office  created  in 
1812,  but  afterwards  abolished,  to  be  revived  in  1828-30)  ;  the  Minister 
of  Trade  and  Industrij ;  and  the  Minister  of  Posts  and  Telegraphs.  These 
last  two  offices  were  created  in  1848  by  subtraction  from  the  department 
of  the  Interior. 

324.  The  Cabinet. — As  a  Cabinet,  the  ministers  represent 
the  administration  in  the  Chambers.  They  are  commonly  chosen 


THE  GOVERNMENT  OF  FEANCE. 


207 


from  amongst  the  members  of  the  Houses ;  but,  whether  mem- 
bers or  not,  they  have,  as  ministers,  the  right  to  attend  all  ses- 
sions of  the  Chambers  and  to  take  a  specially  privileged  part  in 
debate.  The  same  right  extends  also  to  the  Under-secretaries 
of  Finance,  of  the  Interior,  of  the  Colonies,  and  of  Fine  Arts, 
who  are,  consequently,  usually  members  of  the  Chambers. 

A  minister  may  speak  at  anv  time  in  the  Chambers ;  not  even  the 
cloture  (previous  question)  can  exclude  him. 

In  1888  the  Minister  of  War  was  without  a  seat  in  the  Chamber. 

325.  The  Council  of  Ministers.  —  As  an  administrative 
Council  the  ministers  are,  in  olheial  rank  at  least,  subordinate 
to  the  President,  who  is  the  Chief  Executive.  The  Council 
sits  in  his  presence,  though  not  under  his  presidency,  but 
under  that  of  a  special  '  President  of  the  Council '  chosen  by 
the  ministers  from  amongst  their  own  number.  Its  duty  is 
to  exercise  a  general  oversight  of  the  administration  of  the 
laws,  with  a  view  to  giving  unity  of  direction  to  affairs  of 
state.  In  case  of  the  death,  resignation,  or  incapacitation  of 
the  President  of  the  Eepublic,  the  Council  is  to  act  in  his 
stead  until  the  Xational  Assembly  can  meet  and  elect  his  suc- 
cessor. Its  members  are  ex  officio  members  of  the  Council  of 
State,  the  highest  judicial  tribunal  of  the  Eepublic  for  the 
determination  of  administrative  cases  (sec.  353). 

326.  Relation  of  the  Ministers  to  the  President.  —  The 
Council  of  Ministers  is  a  body  recognized  by  law,  the  Cabinet 
is  not :  it  is  only  the  ministers  in  consultation  concerning 
matters  affecting  their  political  responsibility  :  it  is,  aside  from 
such  meetings  for  consultation,  only  a  name  representing  their 
union  in  responsibility.  But  the  two  names.  Council  and  Cabi- 
net, furnish  convenient  means  for  making  plain  the  various 
relations  of  the  ministers  to  the  President.  As  a  Council  they 
are,  in  a  sense,  his  creation ;  as  a  Cabinet  they  are,  in  a  sense, 
his  masters.  The  Executive  Departments,  or  Ministries,  over 
which  they  preside  are  the  creation,  not  of  the  Constitution  or 
of  statutes,  but  of  the  President's  decree.    No  decree  of  the 


208 


THE  GOVERNMENT  OF  FRANCE. 


President's  is  valid,  however,  unless  countersigned  by  the  min- 
ister whose  department  is  affected.  Any  such  decree  must, 
too,  almost  necessarily  affect  the  budget,  and  must  in  that  way 
come  within  the  control  of  the  ministers  and  the  Chambers. 
The  ministers  are  the  President's  appointees ;  but  he  must  ap- 
point ministers  who  are  in  agreement  with  the  majority  in  the 
Chambers,  and  they  are  responsible  to  the  Chambers  alone  for 
their  conduct  in  office.  The  President  is  the  head  of  the 
administration ;  but  his  salary  is  dependent  upon  the  annual 
budget  which  the  ]Minister  of  Pinance  presents  to  the  Cham- 
bers :  and  the  items  of  the  budget  are  matter  of  agreement 
between  the  ministers  and  the  Chambers. 

All  these  '  buts '  are,  of  course,  so  many  fingers  pointing  to 
the  power  of  the  Cabinet  over  the  President.  The  ministers 
are  not  his  representatives,  but  representatives  of  the  Houses. 
In  this  capacity  they  control  not  the  policy  only,  but  also  the 
patronage  of  the  government.  Naturally  the  President's  ap- 
pointments, needing,  as  they  do,  the  countersignature  of  a 
minister,  are  in  general  the  appointments  of  the  ministers; 
and  their  appointments  are  too  often  bestowed  according  to 
their  interest  in  the  Chambers,  —  are  too  often  used,  in  short, 
to  be  cast  as  bait  for  votes. 

The  patronage  of  office,  indeed,  threatens  to  become  even  more  of  a 
menace  to  good  government  in  France  than  it  has  been  to  good  govern- 
ment in  our  own  country  under  the  federal  system  of  appointment. 
The  number  of  offices  in  the  gift  of  the  ministers  in  France  is  vastly 
greater  than  the  number  within  the  gift  of  the  President  of  the  United 
States;  and  the  ministers'  need  to  please  the  Chambers  by  favors  of 
any  and  all  kinds  is  of  course  incomparably  greater  than  our  President's 
need  to  please  Congress,  since  they  are  dependent  upon  the  good-will 
of  the  Chambers  for  their  tenure  of  office. 

327.  Ministerial  Responsibility. —  The  responsibility  of 
the  ministers  to  the  Chambers  is  not  of  law,  but  of  custom, 
as  in  England.  Their  tenure  of  office  is  dependent  upon 
the  favor  of  the  Houses  simply  because  no  policy  of  theirs 


THE  GOVERNMENT  OF  FRANCE. 


209 


could  succeed  without  legislative  approval  and  support.  They 
resign  when  defeated  because  they  will  not  carry  out  measures 
of  which  they  disapprove.  In  theory  their  responsibility  is 
to  both  Houses;  but,  as  a  matter  of  fact,  it  is  only  to  the 
Chamber  of  Deputies.  The  votes  of  the  Senate  alone  seldom 
make  or  unmake  Cabinets ;  that  is  the  prerogative  of  the  pop- 
ular Chamber,  which  is  more  directly  representative  of  the 
nation. 

328.  Questions  and  Interpellations. —  The  ministers  may 
be  held  closely  to  their  responsibility  at  every  turn  of  their 
policy  by  means  of  various  simple  and  effective  forms  of  in- 
quiry on  the  part  of  the  Chambers.  First  of  all  is  the  direct 
question.  Any  member  of  either  House  may,  after  due  notice 
given  to  the  minister  concerned,  ask  any  question  of  the  proper 
minister  as  to  affairs  of  state;  and  an  answer  is  demanded, 
by  custom  at  least,  to  every  question  which  can  be  answered 
publicly  without  detriment  to  the  public  interest.  Next  to 
the  direct  question,  which  is  a  matter  between  the  individual 
questioner  and  the  minister  questioned,  comes  that  broader 
form  of  challenging  the  policy  of  the  Cabinet,  known  as  the 
^Interpellation.''  The  simple  questioner  must  first  get  the 
consent  of  the  minister  to  hear  his  question ;  an  interpellation, 
on  the  contrary,  can  be  brought  on  without  awaiting  the  ac- 
quiescence of  the  minister.  It  is  a  special  and  formal  challenge 
of  the  policy  of  the  Cabinet  on  some  point  of  importance,  and 
is  commonly  the  occasion  of  a  general  debate.  It  is  made  a 
special  ^  order  of  the  day,'  and  usually  results  in  a  vote  expres- 
sive of  confidence  or  want  of  confidence  in  the  ministers,  as  the 
case  may  be.  It  is  the  question  exalted  into  a  subject  of  formal 
discussion :  it  is  the  weightiest  form  of  interrogating  ministers  : 
it  makes  them  and  all  that  they  have  done  the  objects  of  set 
attack  and  defence.  A  third  and  still  more  formal  method 
of  bringing  administrative  acts  under  the  scrutiny  of  the 
Chambers  consists  in  the  appointment  of  a  Committee  of 
Investigation. 


210 


THE  GOVERNMENT  OF  FRANCE. 


329.  Although  their  acts  are  thus  coustantly  and  thoroughly 
scrutinized,  the  ministers  are,  nevertheless,  the  leaders  of  the 
Chambers.  They  represent,  for  however  short  a  time,  the  ma- 
jority, and  all  measures  which  they  propose  are  accorded  a 
position  of  advantage  in  the  business  of  the  houses  (sec.  333). 

330.  The  Course  of  Legislation. —  All  propositions  alike, 
whether  made  by  ministers  or  by  private  members,  have  to  go  to 
a  special  committee  for  consideration  before  reaching  a  debate 
and  vote  by  the  whole  House ;  but  the  propositions  of  private 
members  must  pass  another  test  before  they  reach  even  a  special 
committee.  They  must  go  first  to  the  ^  Monthly  Committee  on 
Parliamentary  Initiative,'  and  it  is  only  after  hearing  the  re- 
port of  that  Committee  upon  bills  submitted  to  it  that  the  House 
determines  whether  particular  measures  shall  be  taken  into 
further  consideration  and  advanced  to  the  special-committee 
stage.  A  vote  of  emergency  taken  upon  the  introduction  of 
a  measure  can,  however,  rescue  a  ministerial  bill  from  all  com- 
mittee handling,  and  a  private  member's  bill  from  the  delays 
of  the  Initiative  Committee. 

331.  The  Committees.  —  The  committee  organization  of  the 
Houses  is  worthy  of  special  remark.  Every  month  during  the 
session,  the  members  of  the  Chamber  of  Deputies  are  divided 
by  lot  into  eleven,  those  of  the  Senate  into  nine.  Bureaux. 
These  Bureaux  select  four  '  monthly  committees,'  one  on 
^  Leave,'  one  on  '  Petitions,'  one  on  '  Parliamentary  Initiative,' 
and  one  on  'Local  Interests.'  The  Bureaux  select,  moreover, 
all  the  special  committees  to  which  bills  are  referred,  except 
when  the  House  chooses  itself  to  elect  a  committee ;  and  they 
themselves  consider  matters  referred  to  them. 

332.  The  Budget  Committee. — All  financial  matters  are 
considered  by  sjoecial  standing  committees  chosen  for  one  year; 
in  the  Chamber  of  Deputies  by  a  Budget  Committee  composed 
of  thirty-three  members,  and  in  the  Senate  by  a  Pinance  Com- 
mittee composed  of  eighteen  members ;  and  these  Committees, 
like  other  standing  committees,  arrogate  to  themselves  some- 


THE  GOVERNMENT  OF  FRANCE. 


211 


thing  like  absolute  domination  of  the  financial  policy  of  the 
government,  with  the  result  of  robbing  financial  legislation  of 
order  and  consistency,  and  of  sadly  obscuring  the  responsibility 
of  the  ministers.  Other  committees  simply  consider  and  report 
upon  ministerial  measures  ;  the  Budget  Committee  undertakes 
often  radically  to  revise,  sometimes  altogether  to  transform, 
ministerial  proposals,  originating  when  it  was  meant  only  to 
control.^ 

333,  Government  by  the  Chambers.  — Ministerial  responsibility 
has  rapidly  degenerated  in  France,  during  the  past  few  years,  into  gov- 
ernment by  the  Chambers,  or,  worse  still,  government  by  the  Chamber  of 
Deputies.  Ministerial  responsibility  is  compatible  with  ministerial  lead- 
ership ;  and  under  a  ministry  which  is  really  given  leave  to  direct  the 
course  of  public  policy,  the  Chambers  judging  and  controlling  but  not 
directing,  that  policy  may  have  dignity,  consistency,  and  strength. 
But  in  France  the  ministers  have,  more  and  more  as  the  years  of  the 
Republic  have  multiplied,  been  made  to  substitute  for  originative  leader- 
ship submissive  obedience,  complete  servility  to  the  wishes,  and  even  to 
the  whims,  of  the  Chamber  of  Deputies.  The  extraordinary  functions 
which  have  been  arbitrarily  assumed  by  the  Budget  Committee  simply 
mirror  the  whole  political  situation  in  France.  The  Chamber  has 
undertaken  to  govern,  with  or  without  the  leadership  of  ministers.  So 
capricious,  so  wilful  has  it  been  in  its  rejection  of  every  minister  who 
would  not  at  once  willingly  serve  its  moods,  so  impatient  indeed  with  all 
ministerial  leadership,  that  almost  every  public  man  of  experience  and 
ability  in  France  has  now  been  in  one  way  or  another  discredited  by  its 
action  ;  and  France  is  staggering  under  that  most  burdensome,  that  most 
intolerable  of  all  forms  of  government,  government  by  mass  meeting,  —  by 
an  inorganic  popular  assembly.  It  is  this  state  of  affairs  which  has 
called  forth  so  loud  a  demand  for  a  revision  of  the  Constitution,  and 
which  has  at  the  same  time  apparently  created  an  opportunity  for 
another  return  to  some  sort  of  dictatorship. 

334.  Departmental  Organization.  —  Each  minister  is  as- 
sisted in  the  administration  of  his  Department  by  a  '  Cabinet,' 
which  must  not  be  confounded  with  the  Cabinet  of  ministers. 
The  Cabinet  of  each  Department  is  composed  of  such  heads 


1  See  the  Bevue  des  Deux  Mondes  for  Nov.  1st,  1886,  p.  226  et  seq. 


212 


THE  GOVERNMENT  OF  FRANCE. 


of  the  branches  of  the  departmental  service  as  the  minister 
chooses  to  bring  into  special  relations  of  confidence  with  him- 
self. It  stands  towards  the  Department  in  a  position  somewhat 
similar  to  that  which  the  Council  of  Ministers  occupies  towards 
the  whole  service  of  the  government  (sec.  325).  It  mediates 
between  the  several  bureaux  of  the  Department,  distributes 
the  matters  laid  before  the  Department  among  them,  gives 
confidential  advice  to  the  minister,  prepares  all  departmental 
matters  which  are  to  be  brought  before  the  Chambers,  and 
serves  generally  as  the  unifying  and  directing  organ  of  the 
Department. 

335.  Departmental  Functions.  — The  possession  of  such 
a  '  Cabinet '  constitutes  the  one  feature  which  all  the  Depart- 
ments have  in  common:  each  Department  having,  of  course, 
an  organization  adapted  to  the  performance  of  its  own  peculiar 
duties.  The  main  duties  of  most  of  the  Departments  are  suffi- 
ciently indicated  by  their  names.  The  Ministry  of  Justice  con- 
trols the  administration  of  civil,  criminal,  and  commercial  law ; 
in  other  words,  is  set  over  the  judicial  system  of  the  country. 
Not  over  the  whole  of  it,  however.  The  strict  differentiation 
of  functions  insisted  upon  in  France  assigns  to  the  Minis- 
try of  War,  the  Ministry  of  Marine,  and  the  Ministry  of  the 
Interior  respectively,  the  administration  of  military,  marine, 
and  administrative  law.  The  Ministry  of  Foreign  Affairs  con- 
trols the  relations  of  France  with  foreign  countries.  The 
Ministry  of  the  Interior  undertakes  all  duties  not  assigned 
to  any  other  executive  Department.  That  of  Fiyiance  collects, 
handles,  disburses,  and  accounts  for  the  revenues  of  the  state. 
That  of  War  directs  all  military  affairs.  That  of  Marine  and 
the  Colonies  has,  added  to  the  duty  of  managing  the  navy,  the 
duty  of  acting  for  the  colonies  as  all  departments  in  one. 
The  Ministry  of  Public  Instruction,  Religion,  and  the  Fine  Arts, 
organizes  and  oversees  education,  from  the  primary  schools  up 
to  the  University,  mediates  between  church  and  state,  buys 
works  of  art  for  the  state,  directs  the  public  art-schools, 


THE  GOVERNMENT  OF  FRANCE. 


213 


museums,  and  art-exMbitions,  subsidizes  the  theatres,  exer- 
cises a  censorship  over  the  drama,  superintends  conservatories 
and  schools  of  music  and  oratory,  and  supervises  the  state 
manufactories  of  Sevres  ware  and  tapestry.  The  Ministry  of 
Public  Works  is  entrusted  with  the  management  of  the  public 
highways,  including  the  railways,  and  of  the  state  mines,  with 
the  inspection  of  shipping  and  the  care  of  seaports  and  light- 
houses, and  with  the  direction  of  the  schools  of  engineering 
and  architecture.  The  Ministry  of  Agriculture  is  charged  with 
the  care  of  the  forests,  the  proper  irrigation  of  the  country, 
oversight  and  assistance  in  the  breeding  of  live-stock,  sanitary 
regulations  with  reference  to  cattle  diseases,  and  the  adminis- 
tration of  the  various  aids  given  by  law  to  agriculture.  The 
Ministry  of  Trade  and  Industry  undertakes  to  provide  for  the 
interior  commerce  of  the  country  the  facilities  afforded  by 
special  courts  of  law,  bourses  and  chambers  of  commerce,  duly 
commissioned  middle-men  and  factors,  life-insurance  companies, 
savings  banks,  and  accident  funds,  official  examination  and  war- 
ranty of  certain  classes  of  manufactured  goods,  the  policing  of 
markets,  and  the  granting  of  patents  and  trade-marks ;  for  the 
foreign  commerce  of  the  country,  it  regulates  duties  and  im- 
posts, offers  premiums  for  shipbuilding  and  seamanship,  and 
collects  statistics.  A  special  '  Bureau  for  Industrial  Societies  ^ 
was  added  to  this  Department  in  1886.  The  Ministry  of  Posts 
and  Telegraphs  sees  to  the  carrying  and  delivery  of  the  mails, 
and  to  the  telegraphic  service  of  the  country. 

The  duties  of  most  of  these  ministries  illustrate  the  range 
of  function  assumed  by  the  government  in  France  (sees.  1234, 
1235)  more  conspicuously  than  they  illustrate  the  form  and 
spirit  of  her  political  institutions.  A  mirror  of  the  political  life 
of  France  is  to  be  foimd  in  the  organization  of  the  Ministry  of 
the  Interior,  which  is  more  largely  concerned  than  any  other 
Department  with  the  multifarious  details  of  local  government. 


214 


THE  GOVERNMENT  OF  FRANCE. 


Local  Government. 

336.  France  still  preserves  the  administrative  divisions 
created  by  the  Constituent  Assembly  in  December,  1789.  In- 
stead of  the  old  system  of  ecclesiastical  dioceses,  military  prov- 
inces, and  administrative  ^generalities'  (sec.  300)  with  their 
complexities  and  varieties  of  political  regulation  and  local 
privilege,  there  is  a  system,  above  all  things  simple  and  sym- 
metrical, of  Departments  divided  into  Arrondissements,  Arron- 
dissements  divided  into  Cantons,  and  Cantons  divided  into 
Communes.  Much  the  most  significant  of  these  divisions  is 
the  Department :  whether  for  military,  judicial,  educational,  or 
political  administration,  it  is  the  important,  the  persistent  unit 
of  organization ;  arrondissement,  canton,  and  commune  are  only 
divisions  of  the  Department,  —  not  fractions  of  France,  but 
only  fractions  of  her  Departments.  The  canton,  indeed,  is 
little  more  than  an  election  district ;  and  the  arrondissement  is 
only  a  fifth  wheel  in  the  administration  of  the  Department. 
The  symmetry  of  local  government  is  perfect  throughout. 
Everywhere  the  central  government  superintends  the  local 
elective  bodies ;  and  everywhere  those  bodies  enjoy  the  same 
privileges  and  are  hedged  in  by  the  same  limitations  of  power. 

337.  The  several  parts  of  the  system  of  local  government 
in  France  will  thus  be  seen  to  rest,  not  upon  any  historical 
groundwork,  constituting  each  a  vital  whole,  possessing  tradi- 
tions of  local  self-government  from  an  older  time  of  freedom, 
but  upon  a  bureaucratic  groundwork  of  system.  If,  therefore, 
France  is  now  approaching  confirmed  democracy  and  complete 
self-government,  as  there  is  good  reason  to  believe  she  is,  a.t 
least  where  her  politics  are  working  their  effects  beyond  the 
circle  of  Parisian  influences,  she  is  building,  not  upon  a  basis 
of  old  habit,  fixed  firmly  in  the  stiff  soil  of  wont  and  preju- 
dice, but  upon  a  basis  of  new  habit  widely  separated  from  old 
wont,  depending  upon  the  shifting  soil  of  new  developments 
of  character,  new  aptitudes,  new  purposes.    Her  new  ways 


THE  GOVERNMENT  OP  PRANCE. 


215 


run  across,  not  with,  the  grain  of  her  historical  nature.  Her 
self-government  is  a-making  instead  of  resting  upon  something 
already  made. 

338.  The  Department:  the  Prefect.  —  The  central  figure 
of  French  administration  is  the  Prefect,  the  legal  successor  of 
the  Intendant.  He  is  the  agent  of  the  central  government  in 
the  Department.  He  is  the  recruiting  officer  of  that  district, 
its  treasurer,  its  superintendent  of  schools,^  its  chief  executive 
officer  in  all  undertakings  of  importance,  and  ,the  appointer  of 
most  of  its  subordinate  officials.  He  fills  a  double  capacity :  he 
is  the  agent  and  api)ointee  of  the  central  government,  and  at 
the  same  time  the  agent  of  the  local  legislative  authorities.  He 
is  at  once  member  and  overseer  of  the  General  Council  of  his 
Department ;  and  he  is  necessarily  its  agent,  inasmuch  as  he 
commands,  as  representative  of  the  authorities  in  Paris,  all 
the  instrumentalities  through  which  its  purposes  must  be 
effected.  A  minister  can  veto  any  act  of  a  Prefect,  —  for  he 
is  the  representative  of  any  minister  who  needs  his  executive 
aid  in  the  Department,  —  but  no  minister  can  override  him 
and  act  by  his  own  direct  authority.  Until  he  is  dismissed 
the  minister  must  act  through  him. 

The  Prefect  may  take  part  in  the  proceedings  of  the  General  Council 
of  the  Department  at  any  time  except  when  his  accounts  are  being 
considered. 

339.  Such  is  the  legal  position  of  the  Prefect.  His  actual 
position  is  somewhat  different.  The  politics  of  the  Eepublic, 
one  of  whose  tendencies  has  been  to  contribute  by  degrees  to 
local  self-government,  is  making  the  Prefect  more  and  more 
the  mere  executive  agent  of  the  General  Council  of  his  Depart- 
ment, and  has  already  made  his  office  a  party  prize.  He  is 
appointed  by  the  Minister  of  the  Interior  and  is  in  law  first 
of  all  and  chiefly  the  representative  of  the  Interior.  But  the 
other  ministers  also,  as  has  been  said,  act  through  him  in  many 

^  He  appoints  and  disciplines  the  teachers. 


216 


THE  GOVERNMENT  OF  FRANCE. 


tilings.  The  result  is  that  his  office  is  often  emptied  and  filled 
again  upon  a  change  of  ministry.  He  no  doubt,  too,  frequently 
owes  his  appointment  to  the  favorable  influence  of  the  depu- 
ties and  senators  from  his  department  with  the  Minister  of 
the  Interior  (sec.  326  n.).  He  is,  consequently,  not  the  auto- 
crat he  was  under  Napoleon.  He  is,  rather,  the  trimmer  to 
local  opinion  too  often  found  under  popular  governments. 

340.  The  Spoils  System  in  France. — French  administration  in 
all  its  branches,  indeed,  and  in  all  grades  of  its  service,  from  the  lowest 
to  the  highest,  has  suffered  profound  corruption  through  the  introduc- 
tion of  the  fatal  idea  that  public  office  may  and  should  be  used  as  a 
reward  for  party  services.  Ministries  have  adopted,  all  too  readily, 
the  damning  practice  of  distributing  offices  among  their  party  followers 
as  pay  for  party  activity,  and  even  among  the  friends  and  constituents 
of  deputies,  in  exchange  for  support  in  the  Chamber.  And  of  course, 
when  short  of  gifts  to  bestow,  they  empty  as  many  offices  as  possible  of 
opponents  or  luke-warm  friends  in  order  to  have  them  to  give  away. 
This  policy  is  doubly  fatal  to  good  government  in  France  because  of 
the  very  frequent  changes  of  ministry  at  present  characteristic  of  her 
politics. 

341.  The  General  Council  of  the  Department.  —  The  legis- 
lative body  of  the  Department  is  the  General  Council,  which 
is  made  up  of  representatives  chosen,  one  from  each  canton, 
by  universal  suffrage.  Except  during  a  session  of  the  Cham- 
bers, the  President  of  the  Eepublic  may  at  any  time  dissolve 
the  General  Council  of  a  Department  for  cause.  The  election 
of  representatives  to  the  General  Council,  like  the  election  of 
deputies,  does  not  take  place  upon  days  set  by  statute,  but  on 
days  set  by  decree  of  the  President.  Councillors  are  elected 
for  a  term  of  six  years,  one-half  of  the  membership  of  the 
Council  being  rencAved  every  three  years.  In  order  that  mem- 
bers of  the  General  Council  may  be  in  fact  representatives  of 
at  least  a  respectable  number  of  the  voters  of  the  cantons,  the 
law  provides  that  no  one  shall  be  elected  on  a  first  ballot 
unless  voted  for  on  that  ballot  by  an  absolute  majority  in  a 
poll  of  at  least  one-fourth  of  the  registered  voters.  Attention 


THE  GOVERNMENT  OF  FKANCE. 


217 


having  been  called  to  the  election  by  the  failure  of  a  first 
ballot,  a  plurality  will  suffice  to  elect  on  a  second.  In  case  of 
a  tie,  the  older  candidate  is  to  be  declared  elected. 

The  membership  of  the  Council  varies  in  the  several  Departments, 
according  to  the  number  of  cantons,  from  seventeen  to  sixty-two. 

The  General  Council  is  judge  of  the  validity  of  elections  to  its  own 
membership ;  but  it  is  not  the  final  judge.  An  appeal  lies  from  its 
decisions  to  the  Council  of  State.  A  seat  may  be  contested  on  the 
initiative  either  of  a  member  of  the  Council,  the  Prefect,  or  a  constitu- 
ent of  the  member  whose  rights  are  in  question. 

342.  There  are  two  regular  sessions  of  the  General  Council 
each  year.  The  duration  of  both  is  limited  by  law :  for  the 
first  to  fifteen  days,  for  the  second  to  one  month.  Extra  ses- 
sions of  eight  days  will  be  called  by  the  President  of  the 
Eepublic  at  the  written  request  of  two-thirds  of  the  members. 
If  the  Council  in  any  case  outsit  its  legal  term,  it  may  be  dis- 
solved by  the  Prefect;  if  it  overstep  its  jurisdiction  in  any 
matter,  its  acts  are  annulled  by  a  decree  of  the  President.  The 
President  has  also  a  veto  on  all  of  its  decisions.  Members 
are  liable  to  penalties  for  non-attendance  or  neglect  of  duty. 
They  are,  however,  on  the  other  hand,  paid  nothing  for  their 
services. 

343.  At  the  first  regular  session  of  the  year  the  Council 
considers  general  business ;  at  the  second  and  longer  session 
it  discusses  the  budget  of  the  department,  presented  by  the 
Prefect,  and  audits  the  accounts  of  the  year.  At  either  session 
it  may  require  from  the  Prefect  or  any  other  chief  of  the 
departmental  service  full  oral  or,  if  it  choose,  written  replies 
to  all  questions  it  may  have  to  ask  with  reference  to  the 
administration. 

344.  The  supervisory  and  regulative  powers  of  the  General 
Council  are  of  considerable  importance ;  but  its  originating 
powers  are  of  the  most  restricted  kind.  It  has  the  right  to 
appropriate  certain  moneys  for  the  expenses  of  local  government, 
but  it  has  not  the  right  to  tax  for  any  purpose.    The  amount 


218 


THE  GOVERNMENT  OF  FRANCE. 


and  the  source  of  the  money  it  is  to  use  are  determined  by  the 
Chambers  in  Paris.  Even  such  narrowed  acts  of  appropriation 
as  it  can  pass  have  to  be  confirmed  by  presidential  decree.  Its 
chief  functions  are  directory,  not  originative.  It  sees  to  the 
renting  and  maintenance  of  the  buildings  needed  for  its  own 
use,  for  the  use  of  the  Prefect  and  his  subordinates,  for  the 
use  of  the  public  schools,  and  for  the  use  of  the  local  courts ; 
it  regulates  the  pay  of  the  police  (gendarmerie)  of  the  Depart- 
ment ;  provides  for  the  cost  of  printing  the  election  lists ; 
supervises  the  administration  of  the  roads,  railroads,  and  pub- 
lic works  of  the  Department ;  oversees  the  management  of  luna- 
tic asylums  and  the  relief  of  the  poor.  Most  important  of 
all,  it  apportions  among  the  several  arrondissements  the  direct 
taxes  annually  voted  by  the  Chambers. 

345.  The  Departmental  Commission.  —  During  the  inter- 
vals between  its  sessions,  the  General  Council  is  represented 
in  local  administration  by  a  committee  of  its  own  members 
called  the  Departmental  Commission,  which  it  elects  to  coun- 
sel and  oversee  the  Prefect.  So  long  as  this  Commission  keeps 
within  its  recognized  prerogatives,  it  is  treated  as  a  committee 
of  the  General  Council,  and  appeals  lie  from  it  to  that  body ; 
but,  let  it  push  beyond  its  prerogatives,  and  it  becomes  respon- 
sible, not  to  the  General  Council  whose  committee  it  is,  but 
to  the  central  administration,  through  appeal  to  the  Council  of 
State.  It  is  thus  at  once  representative  of  the  General  Council 
and  amenable  to  the  Council  of  State. 

346.  Central  Control.  — The  most  noticeable  feature  of  this 
system  is  the  tutelage  in  which  local  bodies  and  the  individual 
citizen  himself  are  kept.  Pines  compel  the  members  of  the 
General  Council  to  do  their  work,  and  then  every  step  of  that 
work  is  liable  to  be  revised  by  the  central  administration. 
Irregularities  in  the  election  of  a  member  are  brought  to  the 
attention  of  the  General  Council  by  the  Prefect,  as  well  as  by 
its  own  members  or  by  petition  from  the  constituency  affected. 
If  the  Council  oversteps  the  limits  of  its  powers,  it  is  checked 


THE  GOVERNMENT  OF  FRANCE. 


219 


by  decree,  and  not  by  such  a  challenging  of  its  acts  in  the 
courts  by  the  persons  affected  as,  in  English  or  American  prac- 
tice, strengthens  liberty  by  making  the  individual  alert  to 
assert  the  law  on  his  own  behalf  instead  of  trusting  inertly 
to  the  government  to  keep  all  things  in  order.  Even  expres- 
sion of  opinion  on  the  part  of  the  General  Council  is  restricted. 
It  may  express  its  views  on  any  matter  affecting  local  or 
general  interests,  ^  if  only  it  never  express  a  wish  which  has  a 
political  character.' 

347.  The  Arrondissement  is  the  electoral  district  for  the 
Chamber  of  Deputies,  the  members  of  the  Chamber  of  Depu- 
ties being  elected,  as  we  have  seen,  not  'at  large,'  for  the 
whole  Department,  but  by  Arrondissements,  —  not  by  scrutin 
de  liste,  that  is,  but  by  scrutin  arrondissement  (sec.  315). 
It  is  also  an  important  administrative  division  which  serves  as 
a  judicial  district  and  as  the  province  of  a  sub-prefect  and  an 
arrondissemental  Council.  The  sub-prefect  is  the  mere  agent 
of  his  chief,  the  Prefect,  and  has  only  a  few,  hardly  more  than 
clerical,  duties ;  the  Council  of  the  Arrondissement  {conseil 
d' arrondissement) ,  elected  from  the  cantons,  like  the  General 
Council  of  the  Department,  has  no  more  important  function 
than  that  of  subdividing  among  the  communes  the  quota  of 
taxes  charged  to  the  Arrondissement  by  the  General  Council. 
For  the  rest,  it  merely  gives  advice  to  administrative  officers 
appointed  by  the  ministers  in  Paris. 

348.  The  Canton  is  the  electoral  district  from  which  mem- 
bers are  chosen  to  the  General  Council  and  the  Council  of  the 
Arrondissement;  it  marks  the  jurisdiction  of  the  Justice  of 
the  Peace :  it  is  a  muster  district  for  the  army,  and  it  serves 
as  a  territorial  unit  of  organization  for  registration  and  for  the 
departmental  care  of  roads,  but  it  has  no  administrative  organi- 
zation of  its  own.  It  is  a  mere  region  of  convenient  size  for 
electoral  and  like  purposes. 

349.  The  Commune  is  the  smallest  of  the  administrative 
divisions  of  France,  and,  unlike  the  arrondissement  and  canton, 


220 


THE  GOVERNMENT  OF  FRANCE. 


is  as  vital  an  organism  as  the  Department.  All  towns  are 
communes  ;  but  there  is,  of  course,  a  much  larger  number  of 
rural  than  of  town  communes.^ 

The  general  rule  of  French  administration  is  centralization, 
the  direct  representation  of  the  central  authority,  through 
appointed  officers,  in  every  grade  of  local  government,  and  the 
ultimate  dependence  of  all  bodies  and  officers  upon  the  minis- 
ters in  Paris.  In  one  particular  this  rule  is  departed  from  in 
the  Commune.  The  chief  executive  officer  of  the  Commune, 
the  mayor,  is  elected,  not  appointed.  He  is  chosen  by  the 
Municipal  Council  from  among  its  own  members,  and  is  given 
one  or  more  assistants  elected  in  the  same  way. 

Down  to  1874  the  mayors  of  the  more  populous  communes  were  ap- 
pointed by  the  authorities  in  Paris,  the  mayors  of  the  smaller  com- 
munes by  the  Prefects.  Between  1831  and  1852  the  choice  of  the 
appointing  power  was  confined  to  the  members  of  the  Municipal  Coun- 
cils ;  but  between  1852  and  1874  the  choice  might  be  made  outside  those 
bodies.  From  1874  to  1882  the  smaller  Communes  elected  their  mayors, 
indirectly  as  now.    Since  1882  all  mayors  have  been  elected. 

350.  The  Communal  Magistracy.  —  The  mayor  and  his 
assistants  do  not  constitute  an  executive  board :  the  mayor's 
assistants  are  not  his  colleagues.  He  is  head  of  the  communal 
government :  they  have  their  duties  assigned  to  them  by  him. 
The  mayor  is  responsible,  not  to  the  Council  which  elects  him, 
but  to  the  central  administration  and  its  departmental  repre- 
sentative, the  Prefect.  Once  elected,  he  becomes  the  direct 
representative  of  the  Minister  of  the  Interior.  If  he  will  not 
do  the  things  which  the  laws  demand  of  him  in  this  capacity, 
the  Prefect  may  delegate  some  one  else  to  do  them,  or  even  do 
them  himself  instead.  For  cause,  both  the  mayor  and  his 
assistants  may  be  suspended,  by  the  Prefect  for  one  month,  by 
the  Minister  of  the  Interior  for  three  months,  and  all  their 
acts  are  liable  to  be  set  aside  either  by  Prefect  or  Minister. 
They  may  even  be  removed  by  the  Executive. 

1  The  total  number  of  coiinnunes  in  France  is  36,105. 


THE  GOVERNMENT  OF  FRANCE. 


221 


In  case  of  a  removal  it  is  the  duty  of  the  Municipal  Council  to  fill 
the  vacancies,  and  to  fill  them  with  other  men  ;  for  removal  renders  the 
mayor  or  his  assistants  ineligible  for  one  year. 

One  of  the  duties  of  the  mayor  is  to  appoint  the  police  force  and 
other  subordinate  officers  of  the  Commune ;  but  in  Communes  of  over 
forty  thousand  inhabitants  the  mayor's  composition  of  the  police  force 
must  be  ratified  by  decree,  and  in  other  communes  all  his  appointments 
must  be  confirmed  by  the  Prefect. 

351.  The  Municipal  Council.  — There  is  in  every  Commune 
a  Municipal  Council  (of  from  ten  to  thirty-six  members,  ac- 
cording to  the  size  of  the  commune)  which  has,  besides  its 
privilege  of  electing  the  mayor  and  his  assistants,  pretty 
much  the  same  place  in  the  government  of  the  Commune  that 
the  General  Council  has  in  the  government  of  the  Department. 
Its  decisions,  however,  have  not  the  same  force  that  attaches 
to  decisions  of  the  General  Council.  The  latter  are  valid 
unless  vetoed ;  the  former  are  not  valid  until  confirmed ;  they 
must,  for  a  certain  term  at  least,  await  ratification.  Unlike 
the  General  Council,  the  Municipal  Council  is  liable  to  be  sus- 
pended for  one  month  by  the  Prefect ;  like  the  General  Coun- 
cil, it  may  be  dissolved  by  decree  of  the  President  passed  in 
the  Council  of  Ministers.  It  holds  four  regular  sessions  each 
year,  one  of  which  it  devotes  to  the  consideration  of  the  muni- 
cipal budget,  which  is  presented  by  the  mayor.  Its  financial 
session  may  continue  six  weeks ;  none  of  its  other  sessions  may 
last  more  than  fourteen  days.  The  mayor  acts  as  its  presi- 
dent, except  when  his  own  accounts  are  under  consideration. 

Neither  the  Municipal  Council  nor  the  Council  of  the  Arrondissement 
is  judge  of  the  validity  of  the  elections  of  its  members.  Contested 
election  cases  are  heard  by  the  Prefectural  Council  (sec.  354). 

Until  1831  the  Municipal  Council  was  chosen  by  the  Prefect  from  a 
list  of  qualified  persons  made  up  in  the  Commune.  Between  1831  and 
1848  its  members  were  elected  by  a  restricted  suffrage.  Since  1848  they 
have  been  elected  by  universal  suffrage. 

In  case  of  a  dissolution  of  the  Municipal  Council,  its  place  may  be 
taken,  for  the  oversight  of  current  necessary  matters,  by  a  delegation 
of  from  three  to  seven  members  appointed  by  the  President  of  the 


222 


THE  GOVERNMENT  OF  FRANCE. 


Republic  to  act  till  another  election  can  be  had.  This  delegation  can- 
not, however,  take  upon  itself  more  than  the  merely  directory  powers 
of  the  Council. 

352.  Oversight  of  the  Commune.  —  The  Commune,  though 
in  many  of  its  relations  a  subdivision  of  the  Department, 
is  not  subject  to  the  oversight  of  the  General  Council.  This 
seems,  of  course,  an  anomaly,  when  looked  at  from  the  point 
of  view  of  those  who  are  accustomed  to  a  system  of  local  gov- 
ernments within  local  governments ;  and  unquestionably  the 
life  of  local  government  in  France  would  be  greatly  quickened 
by  giving  to  the  organs  of  local  government  a  large  independ- 
ence, and  at  the  same  time  bringing  them  into  relations  of 
close  interdependence  to  each  other.  But  politics  has  "  stolen 
into  the  General  Council,  although  the  legislators  of  1871  took 
care  to  shut  the  door  against  it,  and  the  view  is  common  in 
France,  whether  rightly  or  wrongly,  that  the  central  adminis- 
tration is  less  partisan  in  the  oversight  of  the  Communes  than 
the  General  Council  would  be."  ^ 

353.  Administrative  Courts:  the  Council  of  State.  —  So 
thorough  is  the  differentiation  of  functions  in  France  that 
actions  at  law  arising  out  of  the  conduct  of  administration  are 
instituted,  not  in  the  regular  law  courts  connected  with  the  Min- 
istry of  Justice,  but  in  special  administrative  courts  connected 
with  the  Ministry  of  the  Interior  (sec.  335).  The  highest  of 
these  courts  is  the  Council  of  State,  which  is  composed  of  the 
ministers,  and  of  various  high  administrative  officers  of  the 
permanent  service.  It  is  the  court  of  last  resort  on  adminis- 
trative questions.  It  is  also  charged  with  the  duty  of  giving 
advice  to  the  Chambers  or  to  the  government  on  all  questions 
affecting  administration  that  may  be  referred  to  it. 

354.  The  Prefectural  Council. — Below  the  Council  of  State 
are  the  Prefectural  Council,  a  Court  of  Eevision,  a  Superior 
Council  of  Public  Instruction,  and  a  Court  of  Audit.  These 


1  Lebon  (Marquardsen),  pp.  106,  107. 


THE  GOVERNMENT  OF  FBANCE. 


223 


are  not  subordinate  to  each  other :  each  is  directly  subordinate 
to  the  Council  of  State.  The  Prefectural  Council  is,  of  course, 
the  most  important  of  them.  It  has,  amongst  other  weighty 
functions,  that  of  determining  the  validity  of  elections  to  the 
Council  of  the  Arrondissement  and  to  the  Municipal  Council. 
For  the  rest,  it  has  jurisdiction  over  all  administrative  ques- 
tions, and  over  all  conflicts  between  administrative  authority 
and  private  rights.  Its  processes  of  trial  and  adjudication 
are  briefer  and  less  expensive  than  those  of  the  ordinary  law 
courts.  In  almost  all  cases  an  appeal  lies  to  the  Council  of 
State. 

The  Prefect  is  the  legal  representative  of  the  government  in  cases 
brought  before  the  Prefectural  Council ;  but  that  court  is  not  at  all 
under  his  dominance.  It  is  composed  of  permanent  judges,  one  of 
whom,  at  least,  is  usually  of  long  administrative  experience. 

Each  minister  is  himself  a  judge  of  first  instance  in  cases  whose  con- 
sideration is  not  otherwise  provided  for,  an  appeal  always  lying  from 
him,  of  course,  to  the  Council  of  State.  Prefects  and  mayors  are,  in 
like  manner,  judges  of  first  instance  in  certain  small  cases. 

The  Administration  of  Justice. 

355.  Ordinary  Courts  of  Justice.  —  The  supreme  court  of 
France  is  the  Cassation  (Cessation)  Court  which  sits  at  Paris. 
Next  below  it  in  rank  are  tvv^enty-six  Courts  of  Appeal,  the  juris- 
diction of  each  of  which  extends  over  several  Departments. 
These  hear  cases  brought  up  from  the  courts  of  first  instance 
which  sit  in  the  capital  towns  of  the  arrondissements.  These 
last  consider  cases  from  the  Justices  of  the  Peace,  who  hold 
court  for  the  adjudication  of  small  cases  in  the  cantons.  By 
decree  of  the  President,  passed  in  the  Council  of  Ministers, 
the  Senate  may  be  constituted  a  special  court  for  the  consid- 
eration of  questions  seeming  to  involve  the  safety  of  the  state ; 
and  such  questions  may  be  removed  by  the  same  authority 
from  the  ordinary  courts. 

The  appointment  of  all  judges  rests  with  the  President,  or, 


224 


THE  GOVERNMENT  OF  FKANCB. 


rather,  with  the  Minister  of  Justice  ;  and  the  tenure  of  the  judi- 
cial office,  except  in  the  case  of  Justices  of  the  Peace,  is  during 
good  behavior.  In  the  case  of  Justices  of  the  Peace,  the  Pres- 
ident has  power  to  remove, 

356.  Jury  Courts.  — In  France,  the  ordinary  civil  courts  are 
without  juries ;  the  judges  decide  all  questions  of  fact  as  well 
as  all  questions  of  law.  There  are,  however,  special  jury  courts 
{cours  d^assises)  constituted  four  times  a  year  in  each  Depart- 
ment for  the  trial  of  all  crimes,  and  of  political  and  press  of- 
fences; and  in  these  the  jury  is  sole  judge  of  the  guilt  or 
innocence  of  the  accused ;  the  judges  determine  the  pun- 
ishment. 

The  jury  courts  sit  under  the  presidency  of  a  member  of  the  Court 
of  Appeal  within  whose  jurisdiction  the  Department  lies  in  which  the 
court  is  convened,  and  with  him  are  associated  two  '  assessors.'  The 
state  is  represented  in  each  case  by  the  state-attorney  or  one  of  his 
deputies.  A  jury  of  twelve  is  made  up  from  lists  prepared  by  commis- 
sioners of  the  cantons  and  arrondissements.  These  lists  include  the 
names  of  all  Frenchmen  within  the  Department  who  are  thirty  years  of 
age,  able  to  read  and  write,  in  enjoyment  of  all  civil  rights,  and  not 
disqualified  or  excused  hy  law.  Thirty-six  jurors  and  four  substitutes 
are  taken  from  these  lists  for  each  quarterly  session  of  the  court ;  and 
for  each  case  twelve  of  this  number  are  drawn  by  lot,  the  state  and  the 
accused  both  having  the  right  of  peremptory  challenge  of  the  jurors 
drawn  till  but  twelve  names  remain  in  the  urn. 

357.  Tribunal  of  Conflicts.  —  Between  the  two  sets  of 
courts,  the  administrative  and  the  ordinary,  there  stands  a 
Tribunal  of  Conflicts,  whose  province  it  is  to  determine  to 
which  jurisdiction,  the  administrative  or  the  ordinary,  any 
case  belongs  whose  proper  destination,  or  forum,  is  in  dispute. 
This  Tribunal  consists  of  the  Privy  Seal  as  president,  of  three 
State  Councillors  chosen  by  their  colleagues,  and  of  three 
members  of  the  Cassation  Court  selected,  in  like  manner,  by 
their  fellow-judges. 


THE  GOVERNMENT  OF  FRANCE. 


225 


Some  Kepresentative  Authorities. 

Lehon,  Andre,  "Das  Staatsrecht  der  franzosischen  Republik"  (in 

Marquardsen's  "Handbuch  des  oeffentlichen  Rechts  der  Gegen- 

wart").    Freiburg  in  B.,  1886. 
A.ucoc,  "Conferences  sur  Tadministration  et  le  droit  administratif." 

3  vols.   Paris,  1882. 
Block,  "  Dictionnaire  de  I'administration  fran9aise,"  Paris,  1887,  and 

subsequent  annual  supplements. 
Ducrocq,  "  Cours  de  droit  administratif."    2  vols.    Paris,  1881. 
Ferron,  H.  de,  "Institutions  municipales  et  provinciales  comparees." 

Paris,  1884. 

Demornbynes ,  "Les  Constitutions  Europeennes."  2  vols.   Paris,  1883. 

Vol.  XL,  p.  1  et  seq. 
Cheruel,  "Dictionnaire  historique  des  Institutions,  Moeurs,  et  Cou- 

tumes  de  la  France."   6  ed.,  2  vols.   Paris,  1884. 
Stephen,  Sir  Jas.,  "Lectures  on  the  History  of  France."  2  vols.,  3  ed. 

London,  1857. 


VII. 


THE  GOVEKNMENTS  OF  GEEMANY 

358.  The  Feudalization  of  Germany  was  in  some  points 
strongly  contrasted  with  the  feudalization  of  France.  There 
was  in  Germany,  of  course,  no  Eomanized  subject  population 
such  as  existed  in  Gaul,  and  whose  habits  entered  there,  like  a 
leaven,  into  the  polity  of  their  conquerors.  Beyond  the  Rhine 
all  were  of  one  general  kin,  all  bred  in  the  same  general  cus- 
toms. What  was  new  there  was  the  great  Frankish  kingship 
of  Merowingian  and  Carolingian,  —  the  new  size  and  potency 
of  the  regal  power  bred  amidst  the  readjustments  of  conquer- 
ing migration  by  the  dominant  Franks.  For  the  rest,  there 
was  at  first  the  old  grouping  about  elective  or  hereditary 
princes,  the  old  tribal  individualities  of  custom,  the  old  organi- 
zation into  separate,  semi-independent,  self-governing  communi- 
ties. Feudalism  came,  not  so  much  through  fresh  gifts  of  land 
and  novel  growths  of  privilege  based  upon  such  fresh  gifts, 
not  so  much  through  '  benefice '  and  '  commendation,'  that  is, 
the  new  adjustments  of  personal  allegiance  elsewhere  (sees. 
238-240),  as  through  the  official  organization  of  the  Frankish 
monarchy. 

359.  Official  System  of  the  Frankish  Monarchy :  the 
Graf  en.  —  In  order  to  exercise  their  kingly  powers  the  more 
effectually,  the  Frankish  monarchs  adopted  the  natural  plan, 
for  which  there  was  Eoman  precedent,  of  delegating  their 
functions  to  officers  commissioned  to  act  as  their  representa- 
tives in  various  districts  of  their  extensive  domains.  There 


THE  GOVERNMENTS  OF  GERMANY. 


227 


does  not  seem  to  have  been  any  symmetrical  division  of  the 
territory  into  districts  to  fit  the  official  system.  Here  and 
there  throughout  the  kingdom  there  were  counts  (Graf en),  the 
king's  vicegerents  in  the  exercise  of  the  financial,  judicial,  and 
military  prerogatives  of  overlordship  ;  but  the  limits  of  their 
jurisdiction  were  not  always  sharpl}^  defined.  There  were,  for 
one  thing,  many  exemptions  from  their  authority  within  the 
general  districts  allotted  them.  There  were  the  dignity  and 
pretensions  of  provincial  princes  to  be  respected;  more  im- 
portant still,  there  were  the  claims  of  the  great  landowners  to 
a  special  jurisdiction  and  independent  lordship  of  their  own  to 
be  regarded.  As  a  matter  of  policy  such  claims  were  gener- 
ally allowed.  The  demesnes  of  the  greater  landowners  were 
cut  out  from  the  administrative  territory  of  the  Graf  and  given 
separate  political  functions.  Barons  such  as  we  have  seen  in 
France,  —  local  autocrats  with  law  courts  and  a  petty  sover- 
eignty of  their  own,  —  were  thus  freely  created.  The  king 
apparently  could  not  deny  them  the  'immunities'  they  de- 
manded. 

360.  The  Magistracy  of  Office  and  the  Magistracy  of  Pro- 
prietorship. —  There  thus  grew  up,  side  by  side,  as  it  were,  a 
double  magistracy  —  a  magistracy  of  office  and  a  magistracy  of 
proprietorship.  The  Graf  ruled  by  virtue  of  his  office ;  the 
baron  by  virtue  of  his  landed  possessions :  there  were  lords  by 
privilege  (Immunitdtsherren),  and  lords  by  commission.  Of 
course  as  time  went  on  the  two  sets  of  magnates  drew  nearer 
and  nearer  to  the  possession  of  a  common  character  through 
an  interchange  of  qualities.  The  office  of  Gi^af  tended  more 
and  more  to  become  hereditary  and  to  connect  itself  with  the 
ownership  of  large  estates.  Heredity  of  title  and  prerogative 
was  the  almost  irresistible  fashion  of  the  age :  the  men  of 
greatest  individual  consequence,  besides,  —  the  men  who  were 
fit  because  of  their  individual  weight  to  be  delegated  to  exer- 
cise the  royal  authority,  —  were  commonly  the  men  of  large 
properties.    Either  there  went,  therefore,  along  with  the  graf- 


228 


THE  GOVERNMENTS  OF  GERMANY. 


ship,  gifts  of  land,  or  else  men  already  sufficiently  endowed 
with  lands  were  given  the  office :  and  as  the  office  connected 
itself  with  proprietorship  it  took  from  proprietorship  its  in- 
variable quality  of  heredity.  This  was  the  double  process  : 
Grafs  became  hereditary  territorial  lords  ;  and  hereditary  terri- 
torial lords  acquired  either  the  grafship  itself  or  powers  quite 
as  great. 

361.  Hereditary  Chiefs.  —  Add  to  this  hierarchy  the  more 
ancient  princes  of  the  tribes,  and  the  tale  of  greater  lords  is 
complete.  These  princes  were,  by  traditional  title  at  least, 
rulers  of  the  once  self-governing  communities  which  Erankish 
ascendency  had  in  the  days  of  conquest  united  under  a  com- 
mon authority.  In  many  cases,  no  doubt,  they  retained  a  vital 
local  sway.  They  were  intermediate,  in  the  new  political  order, 
between  the  king  and  the  barons. 

362.  Full  Development  of  Territorial  Sovereignty. — By 
the  thirteenth  century  German  feudalization  was  complete. 
Princes  (dukes),  Grafs,  and  barons,  had  all  alike  become  lords 
within  their  own  territories  {Landeslierren) .  Bishops  and 
abbots,  too,  as  in  France,  had  entered  the  competition  for 
power  and  become  themselves  grafs  and  barons.  That  terri- 
torial sovereignty,  that  private  ownership  of  political  author- 
ity which  is  the  distinguishing  mark  of  feudalism,  and  which 
we  have  seen  so  fully  developed  in  France,  is  present  in  as  full 
development  here  in  Germany  also.  But  the  elements  of  the 
development  are  very  different  in  the  two  countries.  In 
France  we  have  seen  the  appointment  of  royal  delegates  come 
after  the  perfecting  of  feudalism  and  lead,  through  the  gradual 
concentration  of  judicial  and  other  authority  in  the  king's 
hands,  to  the  undermining  and  final  overthrow  of  baronial 
sovereignty  (sees.  296,  302).  In  Germany,  on  the  contrary, 
the  royal  representatives,  appointed  while  feudalism  was 
taking  shape,  themselves  entered  and  strengthened  the  baron- 
age, quitting  their  dependent  functions  as  officials  for  the  in- 
dependent functions  of  territorial  lords.    In  France,  in  other 


THE  GOVERNMENTS  OF  GERMANY. 


229 


words,  the  appointment  of  judicial  representatives  of  the 
Crown  was  an  instrument  in  the  hands  of  Louis  IX.  and  his 
successors  for  the  destruction  of  feudal  privilege ;  feudalism 
was  dissolved  through  office.  In  Germany,  on  the  other  hand, 
feudal  privilege,  instead  of  being  eradicated,  was  created  by 
the  very  same  process ;  feudalism  was  fostered  by  office. 

363.  The  Markgraf .  —  One  office  especially  fostered  feudal 
independence  in  Germany.  Outside  the  hierarchy  I  have  de- 
scribed, and  standing  in  special  relations  with  the  king,  was 
the  Markgraf^  —  the  graf  of  the  Mark  or  border,  set  to  defend 
the  kingdom  against  inroads  by  hostile  peoples.  He  was  of 
course  chosen  chiefly  because  of  his  capacity  in  war,  and  was 
of  the  most  imperative,  masterful  soldier  breed  of  the  times. 
To  him,  too,  were  necessarily  vouchsafed  from  the  first  ex- 
traordinary powers.  He  was  made  virtual  dictator  in  the 
unsettled,  ill-ordered  border  district  which  he  was  appointed 
to  hold  against  foreign  attack;  and  he  was  freely  given  all 
the  territory  he  could  conquer  and  bring  under  the  nominal 
authority  of  the  king.  It  was  thus  that  the  Mark  Branden- 
burg stretched  out  to  the  northeast  to  the  inclusion  of  Prussia 
and  other  broad  territory  wrested  from  the  once  threatening 
Wends  (sees.  382-393),  and  that  the  Ostmark  established  by 
Charles  the  Great  as  a  barrier  against  the  Hungarian  increased 
till  it  became  the  great  state  of  Austria  (sees.  374-381).  The 
authority  of  the  kings  over  these  masters  of  the  border  was 
necessarily  very  ineffectual.  The  Markgraf  was  not  long  in 
becoming  virtually  a  ruler  in  his  own  right,  little  disturbed  by 
the  nominal  suzerainty  of  a  distant  mona^rch,  and  possessed  by 
fast  hereditary  right  of  the  titles  and  powers  which  would  one 
day  make  of  him  a  veritable  king. 

364.  The  Empire.  —  Charles  the  Great  set  for  his  succes- 
sors the  example  of  a  wide  rule  and  a  Roman  title.  He  left 
none  of  his  own  race  able  to  sustain  a  r6le  as  great  as  that 
which  he  had  played ;  but,  so  soon  as  his  direct  line  had  run 
out,  Saxon  princes  were  found  eager  and  able  to  revive  the 


230 


THE  GOVERNMENTS  OF  GERMANY. 


great  tradition  and  rehabilitate  the  Empire.  The  Carolingians 
kept  alive  the  title  of  Emperor  as  a  title  of  precedence  to  be 
borne  by  the  elder  line  of  descendants  from  the  great  Charles ; 
but  they  divided  his  territories  among  them,  generation  after 
generation,  in  the  old  disintegrating  Frankish  way,  and  so 
cheated  whomsoever  of  their  number  was  called  Emperor  of 
any  real  Empire.  It  was  thus  that  France  and  other  territo- 
ries became  separated  from  the  German  portion  of  the  Frank- 
lands,  and  set  apart  to  work  out  histories  of  their  own  (sees. 
252,  253,  270). 

365.  The  Saxon  Emperors :  Otto  the  Great.  —  The  great 
figure  among  the  Saxon  emperors,  who  succeeded  the  Carolin- 
gians, was  Otto  (936-973) .  Upon  the  extinction  of  the  line 
of  Charles,  the  nobles  of  the  Empire  had  claimed  the  right  to 
select  their  ruler,  —  a  right  which  they  long  continued  to  exer- 
cise, and  which  they  often  abused  by  the  deliberate  choice  of 
weak  princes  who  would  be  unable  to  make  the  imperial  author- 
ity too  intrusive,  to  the  upsetting  of  baronial  pretensions ;  but 
which  they  seem  at  first  to  have  exercised  with  some  wisdom. 
Certainly  the  Saxon  and  Salian  houses,  which  were  selected 
to  rule  during  the  two  centuries  following  the  death  of  the  last 
Carolingian,  raised  the  imperial  power  to  the  height  of  its  dig- 
nity and  consequence.  Had  there  been  others  like  the  great- 
est emperors  of  these  Houses  to  succeed  them,  Germany,  like 
France,  might  have  won  unity  and  realized  nationality  at  the 
dawn,  instead  of  at  the  noon,  of  the  modern  time. 

366.  The  Saxon  Otto,  deservedly  named  '  the  Great,'  devoted 
the  thirty  odd  years  of  his  vigorous  reign  to  the  repression  of 
the  great  duchies  (Franconia,  Bavaria,  Swabia,  Lotharingia) 
which,  along  with  his  own  duchy  of  Saxony,  had,  in  the  days 
of  the  disintegration  and  decay  of  the  Carolingian  power, 
assumed  a  heady  independence  quite  incompatible  with  real 
unity;  to  the  defence  of  the  Empire  from  the  fierce  and 
repeated  attacks  of  the  Hungarians,  whom  no  energy  less  than 
his  could  have  repelled ;  and  to  the  rehabilitation  of  the  Ger- 


THE  GOVERNMENTS  OF  GERMANY. 


231 


man  power  in  Italy.  In  962,  after  victories  won  in  the  Pope's 
behalf  in  Italy,  he  renewed  in  Eome  the  imperial  office,  to 
which,  the  dukes  within  his  kingdom  and  the  Hungarians 
without  being  the  witnesses,  he  was  able  to  give  a  vitality  and 
ascendency  scarcely  inferior  to  those  of  its  first  estate  under 
Charles  the  Great.  His  weakness,  like  that  of  all  his  succes- 
sors, lay  in  a  foolish  striving  after  a  power  more  extensive 
than  he  could  possibly  hold  together,  so  long  as  the  royal 
authority  in  Germany  was  not  undisputed.  Endeavoring  to 
keep  their  hold  upon  Italy,  Otto  and  his  successors  failed  to 
make  good,  once  and  for  all,  their  hold  upon  Germany.  They 
fell  between  two  stools.  It  was  impossible  for  them  to  hold 
together  in  a  common  subjection  both  stubborn  town-republics 
in  Italy  and  refractory  feudatories  in  Germany.  Still  Otto 
could  make  some  show  of  success  even  in  such  a  task;  and 
even  the  less  able  successors  of  his  own  House  handed  on  to 
the  Salian  princes  who  came  after  them  a  power  not  altogether 
squandered. 

367.  The  Salian  Emperors:  Henry  III.  — The  Salian 
House  in  its  turn  produced  Henry  III.  (1039-1056)  under 
whom  the  imperial  authority  reached  its  greatest  height. 
Henry  was  for  a  time  himself  duke  at  once  of  three  of  the 
four  great  German  duchies,  Franconia,  Swabia,  and  Bavaria, 
while  the  ducal  throne  of  Lotharingia  long  remained  vacant. 
That  process  of  absorption  by  the  Crown  of  all  the  greater 
feudal  titles  which  was  to  consolidate  France  seemed  to  have 
set  in  also  in  Germany.  But  German  royalty  lacked  the 
hereditary  principle  and  the  sustained  capacity  of  a  family 
of  Capets. 

368.  The  Hohenstauf en :  Frederic  Barbarossa. — The  line 
of  Salian  emperors  dwindled  rapidly  away  after  Henry  III.,  and 
in  1138  there  was  brought  to  the  imperial  throne  that  family 
of  Hohenstaufen  which  was  to  complete,  through  Frederic  Bar- 
barossa, the  greatest  of  their  line,  the  folly  of  Italian  warfare. 
The  reign  of  Frederic  was  one  long,  variable,  and  eventually 


232 


THE  GOVERNMENTS  OF  GERMANY. 


fruitless  struggle  with  the  republican  cities  of  Lombardy. 
While  the  emperor  spent  all  his  resources  in  the  south,  Ger- 
many prepared  to  go  to  pieces  so  soon  as  his  strong  hand 
should  be  removed.  Frederic  was  a  man  of  heroic  mould, 
equal  to  the  greatest  tasks  of  ruling,  and  so  long  as  he  lived, 
the  imperial  government  was  measurably  potent  and  respected. 
But  only  such  a  one  as  he  could  wield  the  whip  in  such  a  way 
as  to  effect  a  steady  discipline  of  the  great  feudatories.  Even 
while  he  reigned,  the  forces  of  disintegration  gathered  head. 
Free  cities  sprang  up  which  were  afterwards  to  be  not  a  little 
independent  and  masterful ;  the  Bavarian  Ostmark  was  erected 
into  that  duchy  of  Austria  which  was  one  day  to  grow  into 
the  mistress  of  Germany ;  and  the  Bohemian  duke  (Vladislav) 
received  that  royal  crown  which  was  to  lift  Bohemia  into 
the  front  rank  among  the  German  states  of  the  disintegrate 
Empire. 

369.  The  Interregnum  and  the  Electors.  —  Almost  imme- 
diately after  the  death  of  the  last  of  the  Hohenstaufen  emperors 
(1254)  came  an  interregnum,  —  a  period  of  "  fist-law  "  (Faust- 
recht),  as  the  Germans  themselves  called  it,  —  which  was  event- 
ually to  bring  forth  a  new  constitution  for  the  Empire.  J ust 
after  the  expiration  of  the  Carolingian  line,  as  I  have  said, 
the  German  princes  had  claimed  and  exercised  the  right  to  elect 
the  Emperor  upon  each  occasion  of  the  falling  vacant  of  the 
office  (sec.  365).  Of  course  the  tendency  of  the  time,  which 
was  for  privileges  to  fall  into  the  possession  of  the  strongest, 
to  remain  with  them  through  hereditary  right  so  long  as  they 
continued  strong,  led  to  the  gradual  limitation  of  the  electoral 
power  to  a  few  only  of  the  leading  spirits  among  the  greater 
ecclesiastical  and  temporal  feudatories.  The  Interregnum  was 
brought  about  by  a  factional  fight  among  these  electors.  One 
party  elected  and  crowned  at  Aachen  (the  titular  capital  of 
the  Empire  since  Charles's  time)  Richard  of  Cornwall,  a  son 
of  John  of  England;  but  another  party  among  the  princes 
elected  Alphonso  of  Castile,  a  great-grandson  of  Frederic  Bar- 


THE  GOVERNMENTS  OF  GERMANY. 


233 


barossa,  refused  to  recognize  Richard  as  Emperor,  and  plunged 
the  country  into  a  dreary  civil  war  of  seventeen  years  (1256- 
1273),  during  which  there  really  was  no  imperial  govern- 
ment at  all.  For  Alphonso  did  not  come  to  claim  the  half 
crown  thus  equivocally  offered  him,  Richard  made  no  head- 
way towards  real  emperorship,  and  anarchy  worked  its  full 
confusion.  The  barons  of  the  torn  kingdom  assiduously  set 
about  making  themselves  more  independent  than  ever ;  some 
of  them  openly  devoted  themselves  to  robbery  and  made  a 
trade  of  lawlessness ;  the  towns  drew  together  for  a  govern- 
ment of  their  own  which  would  enable  them  to  dispense  with 
emperors ;  ^  every  element  of  disintegration  acquired  its  full 
potency;  and  the  Empire  seemed  finally  to  have  gone  to 
pieces. 

370.  The  First  Habsburg  Emperor.  — At  length,  in  1273, 
the  electors  agreed  upon  Rudolf,  Count  of  Habsburg,  as  Em- 
peror. Habsburg  was  a  petty  feudal  estate  in  Switzerland: 
but  the  electors  seem  to  have  selected  its  count  for  the  very 
reason  that  he  was  not  powerful.  For  more  than  seventy 
years  they  made  it  their  settled  policy  to  have  none  but  weak 
princes  on  the  throne,  in  order  that  no  too  great  centralization 
of  power  might  cheat  them  of  their  own  unlawful  independence. 
They  even  degraded  the  imperial  ofiice  by  shamelessly  selling 
it  to  the  richest  of  rival  candidates  :  they  did  not  so  much  as 
keep  faith  with  purchasers  of  the  dignity,  but  sold  it  some- 
times to  more  than  one  aspirant  at  once.  Rudolf,  however, 
proved  strong  enough  to  lay  the  foundations  for  the  future 
supremacy  of  his  House.  His  chief  rival  for  the  imperial 
crown  had  been  Ottocar,  king  of  Bohemia,  the  most  powerful 
prince  of  the  Empire,  and  Ottocar's  disappointment  and  resent- 
ment at  not  receiving  the  coveted  honor  were  so  great  that  he 
refused  to  acknowledge  Rudolf  as  his  suzerain.  Rudolf,  con- 
sequently, immediately  undertook  to  compel  his  submission, 

1  This  was  the  period  of  the  formation  of  the  Hanseatic  and  Rhenish 
leagues  mentioned  sec.  246. 


234 


THE  GOVERNMENTS  OF  GERMANY. 


and  so  complete  was  his  success  in  a  battle  on  the  Marchfeld 
(1278)  that  he  wrung  from  Bohemia,  besides  other  territories, 
that  duchy  of  Austria  upon  which  the  Habsburgers  were  to 
erect  much  of  their  future  greatness.  Kudolf's  election  to  the 
throne  had  at  any  rate  given  to  the  house  of  Habsburg  its 
initial  opportunity.  Rudolfs  son,  Albert  of  Austria,  also  won 
the  crown,  and  Frederic  of  Austria  soon  after  figured  as  rival 
to  Lewis  of  Bavaria,  for  the  imperial  title;  but  Habsburg^s 
time  was  not  yet :  Bohemian  princes  were  to  interpose  a  long 
line  of  emperors  before  Austria  should  finally  realize  her  am- 
bition. 

371.  The  Golden  Bull.  — From  1347  to  1437  there  were, 
with  one  interruption,  emperors  of  the  Luxemburg-Bohemian 
line;  and  the  first  of  these,  Charles  IV.  (1347-1378),  is  espe- 
cially notable  as  having  been  instrumental  in  the  promulgation 
of  that  Golden  Bull  which  was  to  continue  to  be  the  funda- 
mental law  of  the  Empire  for  four  hundred  and  fifty  years 
(1356-1806).  This  celebrated  law  was  issued  by  Charles,  with 
the  concurrence  of  an  imperial  Diet,  consisting  of  princes  and 
representatives  of  the  free  cities,  in  1356.  It  determined  who 
should  be  the  electors  of  the  Emperor  and  how  they  should 
exercise  their  electoral  functions.  It  was  once  and  for  all 
settled  that  the  electors  should  be  the  following  seven :  the 
Archbishop  of  Mainz,  the  Archbishop  of  Trier,  the  Archbishop 
of  Cologne,  the  king  of  Bohemia,  the  Count  Palatine  of  the 
Ehine,  the  Duke  of  Saxony  (Wittenberg),  and  the  Markgraf  of 
Brandenburg.  To  each  elector  there  attached  a  great  imperial 
ofiice:  the  three  archbishops  were  respectively  arch-chancel- 
lors of  Germany,  Italy,  and  Burgundy ;  the  king  of  Bohemia 
was  cupbearer ;  the  Count  Palatine,  seneschal ;  the  Saxon  duke, 
marshal;  and  the  Brandenburger,  chamberlain.  It  seems  to 
have  been  the  theory  that  it  was  these  ofiices  which  conferred 
upon  their  possessors  their  prerogative  as  electors ;  but  of 
course  the  fact  was  quite  other  :  the  oJB&ce  had  been  tacked  on 
to  the  prerogative. 


THE  GOVERNMENTS  OF  GERMANY. 


235 


Had  the  final  choice  of  electors  been  made  in  the  earliest  days  of  the 
Empire,  it  would  doubtless  have  been  otherwise  bestowed.  It  would 
have  been  natural  in  any  case  that  the  archbishops  of  Mainz,  Trier, 
and  Cologne  should  be  preferred,  for  they  had  long  been  the  greatest 
spiritual  magnates  of  the  Empire ;  but  at  an  earlier  date  the  four  tem- 
poral votes  would  have  gone  to  the  great  duchies  of  Franconia,  Saxony, 
Swabia,  and  Bavaria.  As  it  was,  in  1356  none  of  these  duchies  any 
longer  existed  whole.  Two  of  them,  Franconia  and  Swabia,  had  become 
entirely  extinct :  the  place  of  Franconia  as  a  principality  had  been  taken 
by  the  Palatinate  of  the  Rhine,  that  of  Swabia  by  Brandenburg.  The 
Count  Palatine  and  the  Markgraf  of  Brandenburg  accordingly  received 
electoral  votes.  Saxony  had  been  divided  between  the  houses  of  Saxon- 
Wittenberg  and  Saxon-Lauenburg,  of  whom  the  Golden  Bull  preferred 
the  former.  The  Duke  of  Bavaria  was  of  the  same  house  as  the  Count 
Palatine,  and  two  votes  were  not  to  be  given  to  one  family.  Bohemia 
was  new,  but  too  powerful  to  be  excluded. 

The  Bull  lays  down  "a  variety  of  rules  for  the  conduct  of  imperial 
elections.  Frankfort  is  fixed  as  the  place  of  election ;  the  Archbishop 
of  Mentz  (Mainz)  named  the  convener  of  the  electoral  college ;  to  Bo- 
hemia is  given  the  first,  to  the  Count  Palatine  the  second  place  among 
the  secular  electors.  A  majority  of  votes  was  in  all  cases  to  be  decisive."  ^ 

There  had  long  been  seven  electors ;  the  Golden  Bull  only  decided 
the  claims  of  rival  parts  of  houses,  confirmed  Bohemia  in  its  vote,  and 
fixed  the  procedure. 

372.  Imperial  Cities.  —  One  of  the  most  important  develop- 
ments of  the  thirteenth  century  in  Germany,  —  the  period  of 
the  Interregnum  and  of  the  extremest  feebleness  and  subordinar 
tion  of  the  imperial  power,  —  was  the  rise  of  the  free  imperial 
cities.  The  cities  of  the  Empire  had,  as  feudalism  developed, 
fallen  into  its  order  in  two  classes.  Some  of  them  held  their 
privileges  of  the  Emperor  himself,  were  his  immediate  vassals ; 
others  were  subordinated  to  some  feudal  lord  and  were  subjects 
of  the  Empire  only  through  him.  The  position  of  those  imme- 
diately dependent  upon  the  Emperor  was  much  more  advanta- 
geous than  the  position  of  those  who  had  lesser  and  nearer 
masters.  The  imperial  supervision  was  apt  to  be  much  less  ex- 
acting than  the  overlordship  of  princes  who,  having  less  wide 

1  Bryce,  Holy  Boman  Empire,  8th  ed.,  p.  231. 


236  THE  GOVERNMENTS  OF  GERMANY. 

interests  to  care  for  tlian  those  which  busied  the  Emperor,  could 
render  their  power  greater  by  concentration.  They  were  always 
near  at  hand  and  jealous  of  any  movement  of  independence  on 
the  part  of  the  towns  within  their  domain ;  the  Emperor,  on 
the  other  hand,  was  often  far  away  and  never  by  possibility  so 
watchful.  He  was  represented  always  by  some  deputy ;  but 
the  presence  of  this  officer  did  not  greatly  curtail  municipal 
self-government.  In  the  thirteenth  century  even  this  degree 
of  control  was  gotten  rid  of  at  the  suit  of  some  of  the  cities. 
They  were  allowed  to  become  '  free '  imperial  cities,  bound  to 
the  Emperor  only  by  sworn  allegiance,  not  by  any  bonds  of  ac- 
tual government.  The  next  step  in  the  acknowledgment  of 
their  independence  and  importance  was  their  admission  to  rep- 
resentation in  the  Diet  of  the  Empire  —  and  such  recognition 
was  not  long  delayed.  The  rdle  of  these  great  free  cities  in 
imperial  affairs  became  one  of  the  most  important  of  the  many 
independent  rdles  played  on  the  confused  stage  of  that  troubled 
time.  Liibeck,  Hamburg,  and  Bremen  retain  to  this  day  a  cer- 
tain privilege  of  position  as  free  cities  in  the  German  Empire 
(sees.  402,  405). 

373.  The  Swiss  Confederation. — Almost  at  the  very  time  that 

the  Habsburgs  first  won  the  imperial  crown  and  acquired  the  duchy 
of  Austria,  some  of  their  Swiss  dependencies  broke  away  from  them, 
and  established  an  independence  never  since  permanently  broken. 
Schwyz,  Uri,  and  Unterwalden,  the  sturdy  little  mountain  communities 
grouped  about  the  southern  end  of  quiet  Lucerne,  with  whose  struggle 
for  freedom  the  glorious  story  of  the  Swiss  Confederation  begins,  con- 
tained some  part  of  the  estates  of  the  Counts  of  Habsburg,  whose 
hereditary  domains  touched  the  other  end  of  Lucerne,  and  stretched 
wide  to  the  north  about  the  further  shore  of  Lake  Geneva,  and  south- 
ward again  on  the  West.  The  region  of  the  Alps  contained  the  nota- 
ble imperial  cities  of  Ziirich,  Berne,  Basle,  and  SchafEhausen ;  and 
Schwyz,  Uri,  and  Unterwalden  claimed  to  be  immediate  vassals  of  the 
Emperor,  as  these  cities  were.  The  Counts  of  Habsburg,  in  despite  of 
this  claim,  sought  to  reduce  them  to  submission  to  themselves.  The 
result  was  a  long  struggle  in  which  the  three  little  cantons,  at  first 
joined  only  by  their  neighbor  canton.  Lucerne,  but  afterwards  by  Zii- 


THE  GOVERNMENTS  OF  GERMANY. 


rich,  Glarus,  Zug,  and  Berne,  were  eventually  completely  victv^.^wiAo. 
By  the  formation  of  this  famous  league  of  free  cantons  and  cities,  at 
first  known  as  the  "Old  League  of  High  Germany,"  but  ultimately  as 
Switzerland  (the  land  of  Schwyz),  there  emerged  from  the  German 
Empire  one  of  the  most  interesting  states  known  to  history.  It  may 
be  said  to  have  been  the  offspring  of  the  disintegrating  forces  of  the 
Empire,  —  a  living  proof  of  its  incoherence.  In  the  next  chapter  we 
shall  consider  its  political  development  with  the  special  attention  which 
it  merits. 

374.  Austria  and  the  Empire.  —  Having  acquired  the  duchy 
of  Austria,  the  House  of  Habsburg  was  no  longer  dependent 
upon  its  fortunes  in  the  Alps  ;  a  forest  canton  more  or  less 
could  make  no  controlling  difference  in  their  political  career. 
In  1438  the  Dukes  of  Austria,  who  had  meantime  added  to  their 
possessions  Carinthia  and  Tyrol,  ascended  the  imperial  throne, 
to  hand  its  titles  on  to  their  descendants  in  a  direct  succession 
broken  by  only  tw^o  interruptions  of  a  single  reign  each,  till 
what  remained  of  the  Empire  should  be  destroyed  by  Napoleon 
in  1806.  That  process  which  had  taken  place  both  in  England 
and  in  France  and  which  might  have  taken  place  at  the  same 
early  time  in  Germany,  had  not  Carolingians,  Saxons,  and 
Salians  all  alike  so  soon  failed  of  male  heirs,  and  had  not  the 
Roman  Church  planned  to  keep  alive  through  imperial  elections 
her  influence  in  the  Empire  which  she  had  created  and  named 
'Holy,'  now  at  last  became  operative  in  the  country  of  the  seven 
electors.  The  imperial  crown  became  hereditary.  The  electors 
continued  with  singular  perseverance  to  go  through  the  forms 
of  election;  but,  though  they  twice  chose  outside  the  House  of 
Austria,^  they  usually  confirmed  the  choice  of  nature  by  elect- 
ing each  time  the  natural  heir  of  the  Habsburger  just  dead. 

375.  Maximilian  I.  —  During  the  first  century  of  its  unin- 
terrupted rule  the  House  produced  a  man  worthy,  as  men  go, 
to  found  a  dynasty.  Maximilian  I.  (1493-1519)  was,  on  the 
whole,  a  very  able  prince ;  more  important  still,  he  was  the 

1  In  1742  they  elected  Charles  VII.  of  Bavaria,  and  in  1745  Francis  I. 
of  Lorraine  (sec.  380). 


238 


THE  GOVERNMENTS  OF  GERMANY. 


most  powerful  prince  of  his  line.  The  power  of  a  German 
emperor  depended  not  on  his  authority  as  Emperor,  but  upon 
what  he  was  besides  being  Emperor.  Maximilian  possessed  all 
the  estates  once  divided  among  various  branches  of  his  family, 
and  was  therefore  the  most  sovereign  duke  Austria  had  yet 
known ;  he  had,  besides,  married  Mary,  the  daughter  and  heir 
of  Charles  the  Bold,  and  had  thus  come  into  possession  of 
many  of  the  great  estates  which  had  made  the  House  of  Bur- 
gundy a  formidable  rival  of  the  most  powerful  kings.  It  was 
with  such  power  behind  him  that  he  became  Emperor.  With 
him,  it  has  been  said,  the  Holy  Eoman  Empire  changes  its 
character  and  becomes  exclusively  German.  The  Holy  Roman 
Empire  was  elective  and  was  dominated  in  large  measure  by 
ecclesiastical  influences ;  the  German  Empire  of  the  Habs- 
burgers  is  hereditary  and  strictly  political.  The  Holy  Eoman 
Empire  was  essentially  a  creation  of  the  Middle  Ages,  was  a 
device  for  holding  together  diverse  feudal  elements  under  the 
outward  appearance  of  a  whole ;  the  German  Empire  is  a  mod- 
ern organization  intended  to  secure  the  dominance  of  a  single 
great  state.  It  emerges  as  the  light  of  the  Renaissance  begins 
to  spread  over  Europe,  as  America  is  discovered,  and  all  medi- 
aeval bonds  are  broken.  Men  did  not  perceive  this  at  the  time, 
but  such  was  nevertheless  the  case.^ 

376.  Maximilian^s  Reforms.  —  The  reforms  which  Maxi- 
milian was  able  to  accomplish  in  the  administration  of  the  Em- 
pire were  not  great,  but  they  at  least  bore  promise  of  a  much- 
to-be-desired  consolidation  of  the  imperial  power.  Even  the 
Emperor's  powerful  feudal  subjects  were  willing  to  aid  in  the 
work  of  unification.  A  diet  at  Worms  in  1495  proclaimed  a 
perpetual  public  peace  and  established  an  Imperial  Chamber 
{Reichskammergericht)  which  was  intended  to  give  to  the  Em- 
pire a  unified  and  authoritative  administration  of  justice ;  and 
another  Diet,  later  in  the  reign  (1512),  divided  the  Empire,  for 


1  See  Bryce,  pp,  312  et  seq. 


THE  GOVERNMENTS  OF  GERMANY. 


239 


the  better  keeping  of  the  peace,  into  ten  administrative  dis- 
tricts, which  were  to  serve  as  a  territorial  framework  for  the 
exercise  of  the  imperial  authority.  Each  district  (or  "  circle," 
as  it  was  called)  had  its  own  judicial  council,  a  sort  of  local 
imperial  chamber,  which,  like  its  prototype,  the  central  Coun- 
cil, was  empowered  to  settle  all  disputes  which  threatened  the 
public  peace.  The  system  was  one  which  promised  centraliza- 
tion, but  did  not  give  it.  There  was  still,  as  it  turned  out,  little 
vitality,  little  reality  in  the  connection  between  central  and 
local  authorities.  The  Empire's  parts  administered  themselves 
rather  than  were  administered. 

The  ten  circles  comprised  no  less  than  two  hundred  and  forty  sepa- 
rate '  estates '  of  the  Empire,  although  Bohemia,  Prussia,  and  Switzer- 
land were  left  out  as  already  practically  independent.  This  astonishing 
number,  which  still  excluded  the  lesser  feudatories  like  the  imperial 
knights,  conveys  some  idea  of  the  piece-meal  political  condition  of  the 
Empire. 

377.  Although  these  reforms  did  not  result  in  any  very  satis- 
factory system  or  in  any  permanent  energizing  of  the  central 
imperial  power  throughout  the  Empire,  yet  they  were  typical 
of  a  hopeful  tendency  towards  German  national  unity.  Max- 
imilian was  able  to  establish  a  permanent  army  (it  was  the  era 
when  gunpowder  was  driving  the  old  feudal  levies  out  of  exist- 
ence and  necessitating  the  drill  of  standing  forces),  to  intro- 
duce a  system  of  imperial  police,  and  to  organize  a  public  letter 
post.  The  functions  of  the  Imperial  Chamber,  too,  gradually 
passed  into  the  hands  of  a  smaller  court  more  immediately 
under  the  control  of  the  Emperor.  The  House  of  Habsburg 
was  at  any  rate  secure  in  its  ascendency. 

378.  The  Habsburg  Marriages.  —  From  the  reign  of  Max- 
imilian I.  to  the  Napoleonic  wars  at  the  opening  of  the  pres- 
ent century  the  history  of  Germany  as  an  Empire  is  hardly 
more  than  the  political  history  of  Austria.  The  most  striking 
feature  of  the  period  is  the  wonderful  growth  of  Habsburg 
power  by  means  of  a  most  extraordinary  series  of  fortunate 


240 


THE  GOVERNMENTS  OF  GERMANY. 


marriages,  which  made  contemporaries  say  that  what  Mars 
gave  to  others  Venus  gave  to  the  House  of  Austria.  Maxi- 
imilian  I.,  as  we  have  seen,  married  Mary  of  Burgundy  and  so 
added  to  Austria  the  territories  of  that  great  House.  The  son 
of  this  marriage,  Philip  the  Fair,  Archduke  of  Austria,  married 
Joanna,  the  heiress  of  Aragon  and  Castile,  and  so  brought  into 
the  world  that  greatest  figure  of  the  house  of  Habsburg, 
Charles  V.,  master  of  Spain  and  her  American  possessions,  of 
the  Netherlands,  and  of  Austria,  with  all  that  depended  upon 
these,  the  dreaded  rival  of  every  independent  power  in  Europe 
(1519-1556).  It  was  this  Charles  who,  bidding  for  the  polit- 
ical co-operation  of  the  Papacy  against  Francis  I.  of  France, 
threw  his  weight  against  Luther  in  the  great  Diet  at  Worms 
and  so  inaugurated  the  momentous  contests  of  the  Eeformation 
which  were  to  issue  in  the  terrible  Thirty  Years'  War.  After 
his  abdication  the  vast  double  domains  of  the  House  were  sep- 
arated. Charles's  son  Philip  received  Spain  and  the  Nether- 
lands, his  brother  Ferdinand  Austria  and  the  imperial  succes- 
sion :  there  being  thus  established  a  Spanish  and  an  Austrian 
branch  of  the  Habsburg  line  which  were  henceforth  to  have 
separate  histories. 

-  379.  The  Thirty  Years*  War  (1618-1648),  which  began  as 
a  religious  war  with  the  revolt  against  the  Empire  of  the  Prot- 
estants of  Bohemia,  degenerated  in  its  last  stages  into  a  gen- 
eral European  war  of  aggrandizement,  and  ended  with  a  general 
redistribution  of  border  territory  amongst  Sweden,  France, 
Brandenburg,  and  Austria,  which  emphasized  the  internal  an- 
tagonisms of  the  German  States,  but  which  left  the  House  of 
Habsburg  in  much  the  same  position  as  of  old.  Austria  re- 
mained still  head  of  the  Empire,  though  the  imperial  '  estates ' 
were  left  free  to  act  for  themselves  in  all  matters  which  did 
not  immediately  affect  imperial  interests,  —  were  given,  i.e., 
what  was  called  "  territorial  superiority  "  (Landeshoheit)  —  and 
a  permanent  Diet  was  presently  (1663)  constituted  at  Eegens- 
burg,  in  whose  hands  a  more  definite  imperial  constitution  began 


THE  GOVERNMENTS  OF  GERMANY. 


241 


to  be  developed.  Perhaps  the  most  important  result  of  the 
peace  (of  Westphalia)  was  the  acknowledgment  of  the  inde- 
pendence of  Switzerland  and  the  Eepublic  of  the  United  Neth- 
erlands. 

380.  Until  1806. — The  eighteenth  century  is  marked  for 
Germany  (1)  by  the  War  of  the  Spanish  Succession  which  re- 
sulted (Peace  of  Utrecht)  in  the  failure  of  the  claim  of  the 
Austrian  Habsburgers  to  the  throne  of  Spain  and  in  the  rec- 
ognition of  Prussia  (Brandenburg)  as  a  kingdom  (sec.  392); 
(2)  by  the  War  of  the  Austrian  Succession,  which  arose  out  of 
the  failure  of  the  male  line  of  the  House  of  Austria  ^  (the  posses- 
sions of  the  House  falling  to  Maria  Theresa),  which  practically 
ended  with  the  election  of  Francis  of  Lorraine,  the  husband  of 
the  Austrian  heiress,  to  the  imperial  throne,  securing  to  Habs- 
burg-Lorraine  the  Habsburg  succession,  and  which  resulted  in 
the  loss  by  Austria  of  Silesia  to  Frederic  the  Great  of  Prussia 
(Peace  of  Aix-la-Chapelle,  1748)  ;  (3)  by  the  Silesian  wars, 
the  last  of  which  was  called  the  Seven  Years'  War  (1756- 
1763),  which  arose  out  of  the  reopening  of  the  contest  between 
Austria  and  Prussia  for  the  possession  of  Silesia,  and  which 
resulted  in  the  final  confirmation  of  the  title  of  Prussia,  a  title 
rather  of  might  than  of  right  (Peace  of  Hubertsburg,  1763) ; 
(4)  by  the  legal  and  ecclesiastical  reforms  whereby  Joseph  IL, 
son  of  Maria  Theresa,  partially  liberalized  and  rehabilitated 
the  Austrian  Empire  ;  and  (5)  by  the  leagued  opposition  of 
German  princes,  acting  under  the  leadership  of  Frederic  of 
Prussia,  to  the  attempt  of  Joseph  to  absorb  Bavaria  by  trans- 
ferring its  heir  to  the  Austrian  Netherlands. 

381.  End  of  the  Old  Empire.  —  This  last  event  was  upon 
the  eve  of  the  French  Revolution  :  and  that  revolution  event- 
ually brought  forth  Napoleon  Bonaparte,  whose  sweeping  con- 
quests forced  Francis  of  Austria  to  abdicate  the  imperial  ofiice 
in  1806,  and  so  brought  to  an  end  at  once  the  real  German 

^  This  was  the  period  (1742-1765)  of  the  election  of  Charles  of  Bavaria 
and  Francis  of  Lorraine  to  the  imperial  dignity. 


242 


THE  GOVERNMENTS  OF  GERMANY. 


Empire  which  Maximilian  had  founded,  and  the  tradition  of 
the  Holy  Roman  Empire  which  ran  back  to  the  great  Charles 
and  the  year  800. 

382.  Austria's  Rival,  —  Prussia. — Meantime  a  rival  to 
Austria  had  grown  up  in  the  north,  out  of  the  North  Mark 
established  by  Henry  the  Fowler  in  930  as  the  Empire's  bar- 
rier against  the  Wends  (sec.  363).  North  Mark  as  well  as 
East  Mark  had  waxed  great  and  independent ;  they  now  stood 
face  to  face,  the  two  great  border  kingdoms,  in  a  rivalry  which 
was  to  have  the  most  momentous  influence  upon  German 
history. 

383.  The  Mark  Brandenburg. —  The  original  North  Mark, 
—  afterwards  known  as  the  Altmark,  or  Old  Mark,  —  was  a 
small  district  upon  the  left  bank  of  the  Elbe,  where  the  river 
turns  decisively  and  finally  northwest  on  its  way  to  the  North 
Sea.^  The  Elbe  then  constituted  the  northeastern  limit  of 
the  Frankish  kingdom ;  neither  Carolingian  nor  Saxon  empe- 
rors had  been  able  to  maintain  a  permanent  foothold  beyond  it. 
They  had  gained  a  fringe  of  territory  on  the  right  bank  of  the 
stream,  only  to  lose  it  again  to  the  Wends,  its  sturdy  Slavonic 
masters.  In  1134,  however,  the  Emperor  conferred  the  Mark 
upon  one  Albert  of  the  powerful  house  of  Anhalt,  who  has 
come  down  to  us  as  '  Albert  the  Bear,'  a  man  of  daring  and 
energy  of  the  sort  that  loves  strenuous  contests  with  the  foes 
both  of  circumstance  and  of  the  battle-field.  Before  him  the 
stubborn  heathen  gave  way.  He  pushed  beyond  the  river  and 
began  rapidly  to  widen  the  North  Mark  into  a  great  territory 
which  should  have  the  Elbe  at  its  back  instead  of  at  its  front 
in  facing  the  barbarians  beyond.  Albert's  successors,  though 
not  so  capable  and  masterful  as  he  had  been,  were  able  pretty 
steadily  to  advance  the  work  Avhich  he  had  begun.  Step  by 
step  they  pushed  their  conquests  on  till  the  next  great  river 
of  the  north,  the  Oder,  had  been  reached,  till  even  the  Oder 

1  About  sixty-five  miles  northwest  from  Berlin. 


THE  GOVERNMENTS  OF  GERMANY. 


243 


had  been  passed,  and  both  Mecklenburg  between  the  rivers, 
and  Pomerania  beyond,  had  been  brought  under  their  power, 
and  two-thirds  of  the  southern  shore  of  the  Baltic  acknowl- 
edged them  as  masters.  The  House  of  Anhalt  continued  to 
furnish  Markgrafs  for  this  great  task  of  conquest  for  almost 
two  hundred  years  (1134-1320),  —  the  period  which  saw  the 
rise  and  fall  of  the  Hohenstaufen,  the  Interregnum,  and  the 
greatest  degradation  of  the  imperial  office,  —  a  period  con- 
sequently of  the  greatest  opportunity  for  independent  action 
and  self-aggrandizement  on  the  distant  northern  borders. 

384.  And  Anhalt  did  its  work  thoroughly.  It  not  only 
conquered,  but  also  colonized.  Great  numbers  of  colonists  both 
from'  Holland  and  from  the  more  southern  Teutonic  lands  were 
brought  into  the  newly  acquired  territory ;  fully  one  hundred 
towns  are  said  to  owe  either  their  foundation  or  their  re- 
foundation on  a  Germanic  basis  to  this  time.  The  land  was 
thoroughly  Teutonized,  with  the  double  benefit  of  a  new  and 
vigorous  population  and  a  new  fertility  and  wealth,  —  for  the 
new-comers  coaxed  the  barren  soil  of  the  country  into  an  un- 
wonted productiveness,  and  the  towns  created  and  rapidly 
developed  an  unaccustomed  trade.  Meantime  the  country,  so 
much  extended  beyond  the  narrow  area  of  the  Old  Mark,  had 
become  the  "Mark  Brandenburg,"  a  name  which  it  took  from 
its  new  capital  city,  once  a  stronghold  of  the  Wends  under  the 
name  Branibor. 

385.  Independence  of  the  Markgraf .  —  Under  the  House 
of  Anhalt,  too,  the  Mark  had  undergone  more  than  territorial 
expansion  and  material  development :  it  had  undergone  also  a 
significant  political  transformation.  The  Grafs  of  the  old 
North  Mark  had  not  generally  assumed  to  be  more  than  officers 
of  the  Empire,  the  Emperor's  lieutenants  on  the  border.  Prob- 
ably even  Albert  the  Bear  fully  acknowledged  this  complete 
subordination  of  his  functions  to  the  control  of  the  imperial 
will.  But  by  the  time  the  North  Mark  had  expanded  into  the 
Mark  Brandenburg,  the  Markgrafs,  secure  in  hereditary  pos- 


244 


THE  GOVERNMENTS  OF  GERMANY. 


session  of  their  office,  had  begun  to  act  not  as  real  officers,  but 
only  as  nominal  vassals  of  the  Empire.  They  ruled  their 
domain  with  a  peculiar  potency,  moreover.  'Not  many  great 
estates  were  developed  in  Brandenburg  during  the  early 
periods  of  its  development.  Most  of  the  immigrants  held 
directly  of  the  Graf :  there  were  few,  except  the  burghers  of 
the  fast-growing  towns,  to  dispute  his  complete  supremacy. 
It  looked  as  if  a  kingdom  of  unprecedented  homogeneity  and 
compactness  were  a-making  in  the  lands  between  the  Elbe  and 
the  Oder. 

386.  Anarchy  in  Brandenburg.  —  But  before  any  such 
process  could  work  itself  out  the  heirs  of  Anhalt  failed,  and 
the  Mark  fell  to  the  Emperor  as  a  lapsed  fief.  From  1324  to 
1373  it  was  held  by  the  imperial  House  of  Bavaria;^  from 
1373  to  1411  by  the  House  of  Luxemburg ;  and  during  these 
eighty-seven  years  anarchy  and  dissolution  worked  a  constant 
work  of  destruction.  The  Anhalt  grafs  had  made  the  govern- 
ment and  extension  of  the  Mark  their  chief  concern,  and  so 
had  kept  it  well  in  hand,  both  against  disorder  within  and 
covetous  neighbors  without ;  but  to  the  Bavarians  and  Luxem- 
burgs  Brandenburg  was  a  mere  appendage  to  other  more  im- 
portant possessions.  They  were  absentee  lords ;  and  in  their 
absence  their  Mark  land  rapidly  slid  towards  ruin.  Lawless- 
ness such  as  the  whole  Empire  had  strained  under  during  the 
Interregnum  now  wrenched  government  from  its  foundations 
in  the  neglected  Mark.  The  more  powerful  vassals  hastened 
to  fortify  themselves  in  the  special  privileges  of  a  virtual  in- 
dependence ;  nobles  became  highwaymen ;  towns  that  could 
escape  the  clutches  of  neighbor  barons  escaped  also  all  con- 
trol of  the  legitimate  government;  and  every  prince  whose 
territories  touched  those  of  Brandenburg  helped  himself 
almost  as  he  listed  to  such  parts  of  the  apparently  doomed 

1  It  was  during  the  tenure  of  Bavaria  that  the  right  of  Brandenburg 
to  a  vote  in  the  electoral  college  was  acknowledged  by  the  Golden 
Bull  (sec.  300). 


THE  GOVERNMENTS  OF  GERMANY. 


245 


Mark  as  most  tempted  or  could  least  withstand  him.  It 
looked  as  if  Anhalt's  work  was  to  be  utterly  undone  and 
Brandenburg  become  common  spoil  for  Germany. 

387.  The  Hohenzollern.  — Just  in  time,  as  it  would  seem, 
a  House  capable  as  any  to  reconstitute  the  torn  domain  and  as 
interested  as  any  to  identify  its  fortunes  with  their  own,  came 
into  possession  of  the  diminished  authority  of  the  markgraf- 
ship.  This  was  the  now  famous  House  of  Hohenzollern.  This 
House,  a  branch  of  the  Swabian  Zollern,  had  been  invested,  in 
1192,  with  the  burggrafship  of  Xiirnberg.  The  Burggraf  of 
Niirnberg,  like  the  Markgraf  of  the  ]Srorth  Mark,  was  originally 
an  imperial  officer;  but  the  burggrafship  became  hereditary 
and  semi-independent  like  all  other  grafships  (sec.  360)  ;  and 
in  the  hands  of  the  Hohenzollern  it  had  attained  to  a  very 
great  power  and  importance.  Gradually  piece  after  piece  of 
the  territories  about  Niirnberg  was  absorbed  until  both  Ans- 
bach  and  Bayreuth  were  included  in  the  possessions  of  the 
ambitious  burggrafs,  and  the  Hohenzollern  had  taken  their 
place  among  the  most  important  princes  of  the  Empire. 
Sigismund  of  Luxemburg,  who  was  elevated  to  the  imperial 
throne  in  1410,  was  probably  in  debt  to  Frederic  of  Hohen- 
zollern, the  Burggraf  of  Niirnberg,  for  stanch  support  against 
his  rivals  in  the  imperial  race.  At  any  rate  he  created  Fred- 
eric Markgraf  of  Brandenburg  in  1411.  Twenty-seven  years 
afterwards,  upon  the  death  of  Sigismund,  this  same  Frederic 
aspired  to  succeed  him,  but  Albert,  the  first  of  the  continuous 
line  of  Habsburgers,  was  chosen.  The  day  for  the  real  rivalry 
between  Habsburg  and  Hohenzollern  was  not  yet.  The  Bran- 
denburger  had  first  to  nurse  his  power  to  its  full  stature. 

388.  The  Dispositio  Achillea.  —  Nothing,  perhaps,  con- 
tributed more  to  the  ultimate  supremacy  of  Brandenburg  in 
Northern  German^",  than  the  wise  provisions  speedily  adopted 
by  the  Hohenzollern  concerning  the  manner  in  which  their 
new  territory  should  be  handed  on  by  inheritance.  They  not 
only  recompacted  the  Mark  by  restoring  firm  government. 


246 


THE  GOVERNMENTS  OF  GERMANY. 


retaking  some  of  its  stolen  parts,  and  stamping  out  the  threaten- 
ing internal  divisions  between  noble  and  noble ;  they  also  deter- 
mined that  they  would  not  themselves  divide  the  domain.  A 
family  law  was  promulgated  by  the  Markgraf  Albert  '  Achilles ' 
(1471-1486)  which  forbade  any  division  of  the  Mark  lands  or 
of  the  estates  of  Ansbach  and  Bayreuth.  These  latter  and  the 
Mark  might  be  separated  from  each  other ;  but  neither  was  to 
be  partitioned  within  itself.  This  is  known  as  the  Dispositio 
Achillea,  and  has  justly  been  regarded  as  one  of  the  principal 
foundation  stones  of  HohenzoUern  predominance.  For  in  thus 
consolidating  the  power  of  their  House  by  adopting  the  princi- 
ple of  primogeniture,  the  new  masters  of  Brandenburg  were 
beforehand  with  the  rest  of  Germany.  Elsewhere  noble  fami- 
lies were  constantly  dissipating  carefully  cumulated  power  by 
partitions  amongst  heirs.  The  HohenzoUern,  on  the  contrary, 
though  they  did  not,  for  a  generation  or  two  after  the  Dispo- 
sitio, quite  strictly  hold  to  their  new  rule  of  inheritance,  adhered 
to  it  closely  enough  eventually  to  preserve  their  power  whole. 
Thereafter  every  acquisition  added  to  the  compact  mass. 

389.  Joachim  II.  —  Later  HohenzoUern  showed  a  capacity 
for  legal  reforms  of  another  kind.  Joachim  I.  (1499-1535) 
established  at  Berlin  a  supreme  court  to  give  unity  to  the  ad- 
ministration of  justice ;  and,  in  order  to  give  unity  also  to  the 
law,  introduced  the  Eoman  Code  as  a  convenient  substitute 
for  a  perhaps  impossible  systematization  of  the  heterogeneous 
customs  native  to  the  Mark.  The  reign  of  Joachim  IT.  (1535- 
1571)  marks  a  sort  of  turning  point  in  the  history  of  Branden- 
burg ;  for  it  was  then  that  the  power  of  the  Elector  and  the 
influence  of  the  'estates'  of  the  Mark,  —  the  nobles  and  the 
municipalities,  —  were  most  nearly  at  an  equilibrium.  Imme- 
diately afterwards  the  towns  declined,  and  all  circumstances 
shaped  themselves  in  favor  of  the  Elector  and  against  a  con- 
tinued control  of  affairs  by  the  'estates.'  More  important 
still,  Joachim  identified  himself  with  the  Protestant  side  in  the 
great  controversy  of  the  Eeformation,  and  from  him  dates  that 


THE  GOVERNMENTS  OF  GERMANY. 


247 


steady  Protestantism  of  the  House  of  Hohenzollern  which  came 
eventually  to  constitute  a  chief  part  of  its  claim  to  lead  Ger- 
many in  opposition  to  Catholic  Austria.  It  was  this  Joachim 
II.,  too,  who  prepared  much  of  the  later  history  of  his  House 
by  obtaining  from  the  Duke  of  Prussia,  in  1569,  assent  to  a 
solemn  covenant  that  when  the  then  ducal  line  should  run  out 
the  duchy  should  pass  to  Brandenburg.  In  1618  the  compact 
was  fulfilled,  and  John  Sigismund  of  Hohenzollern  became 
also  Duke  of  Prussia. 

390.  Prussia  was  a  district  of  considerable  size,  lying  be- 
tween the  rivers  Vistula  and  Memel  at  the  southeast  extremity 
of  the  Baltic.  It  had  been  taken  from  the  Lithuanian  inhabi- 
tants between  the  years  1230  and  1283  by  the  Teutonic  Knights, 
who  were  out  of  congenial  employment  since-  the  end  of  the 
fighting  in  Palestine  and  were  eager  for  a  stirring  new  crusade 
against  the  heathen  of  Northern  Europe.  The  Knights  col- 
onized and  organized  their  conquests  much  as  Albert  the  Bear 
and  his  successors  had  colonized  and  organized  Brandenburg. 
For  more  than  a  century  they  held  their  possessions  in  virtual 
independence  ;  but  in  1467  they  were  compelled  to  acknowl- 
edge themselves  subject  to  Poland.  In  1511  the  effort  of  the 
Order  to  govern  as  an  Order  had  been  abandoned,  and  East 
Prussia  had  been  erected  by  Albert,  a  Franconian  Hohenzol- 
lern, Grand-Master  of  the  Order,  into  a  duchy  held  as  a  fief  of 
Poland.  The  Prussia,  therefore,  to  whose  ducal  throne  John 
Sigismund  succeeded  in  1618  was  a  fief  of  Poland,  and  was 
separated  from  Brandenburg  by  the  wide  expanse  of  West 
Prussia,  a  large  district  extending  from  Pomerania  to  the 
Vistula,  which  had  once  been  part  of  the  domain  which  the 
Teutonic  Knights  had  won,  but  which  was  now  an  integral  part 
of  .  the  territory  of  Poland. 

391.  The  Great  Elector. —  But  in  1640  there  came  upon 
the  stage  a  Hohenzollern  who  was  to  force  upon  his  neighbors 
numerous  changes  in  the  political  map.  This  was  Frederic 
William  (1640-1688),  ever  since  honored  with  the  name  of  the 


248 


THE  GOVERNMENTS  OF  GERMANY. 


Great  Elector.  By  the  Peace  of  Westphalia,  Frederic  Wil- 
liam obtained  Magdeburg  and  most  of  Pommerania  (which 
in  a  previous  time  of  disintegration  had  been  absorbed  by  Swe- 
den). In  1657,  by  skilful  playing  of  a  double  part  in  a  war 
between  Sweden  and  Poland,  he  extorted  from  the  latter  a 
relinquishment  of  her  feudal  rights  over  Prussia,  and  so  made 
it  a  free  duchy.  One-third  of  his  territory  at  his  death  lay 
outside  of  the  Empire  and  owned  no  master  but  himself. 
Inside  his  dominions  he  established  absolutism.  In  Branden- 
burg the  towns  had  greatly  declined;  and  the  nobles  had  abdi- 
cated their  control  over  the  Elector  by  granting  him  a  permanent 
income,  so  that  only  management  and  force  of  character  were 
needed  to  make  the  Elector's  will  supreme  there.  In  Prussia 
he  did  not  scruple  to  make  force  his  instrument  in  establishing 
absolutism. 

392.  The  Kingdom  of  Prussia.  —  Frederic,  son  of  the 
Great  Elector,  used  the  power  left  him  by  his  father  to  give 
weight  to  intrigues  whereby  he  finally  got  the  consent  of  the 
Emperor  to  his  assumption  of  the  title  of  King  of  Prussia. 
The  Emperor  would  not  consent  to  the  erection  of  a  new  king- 
dom within  the  Empire ;  but  Prussia  lay  outside  the  Empire  ; 
Frederic  might  call  himself  King  of  Prussia.  Frederic  accord- 
ingly crowned  himself  with  great  impressiveness  and  pomp 
at  Konigsberg  in  Prussia,  becoming  King  of  Prussia  and 
Elector  of  Brandenburg.  The  greater  title  speedily  swallowed 
up  the  less.  The  King  of  Prussia  was  an  independent  monarch; 
the  Elector  of  Brandenburg  was  still  a  subject  of  the  Empire. 
The  Elector  always  preferred,  consequently,  to  be  known  by 
the  title  of  greater  dignity.  A  brief  time  and  the  natural 
result  will  follow  :  instead  of  Brandenburg's  giving  its  name  to 
Prussia,  Prussia  will  give  its  name  to  Brandenburg. 

393.  Frederic  the  Great.  —  Frederic,  the  first  king  of  Prus- 
sia, governed  from  1688  to  1713.  His  son,  Frederic  William  I. 
(1713-1740),  rounded  out  Brandenburg's  possessions  in  Pom- 
merania, and  hoarded  the  money  and  prepared  the  army  with 


THE  GOVERNMENTS  OF  GERMANY. 


249 


wliicli  his  son,  Frederic  the  Great  (1740-1786),  was  to  complete 
the  greatness  of  Prussia.  The  great  Frederic  took  Silesia  from 
Austria,  as  we  have  seen  (sec.  380),  and  then,  joining  in  the 
heartless  and  scandalous  partition  of  Poland  in  1772,  filled  up 
the  gap  between  Brandenburg  and  East  Prussia  with  West 
Prussia  and  the  Ketze  district,  territory  already  thoroughly 
German.  The  second  and  third  partitions  of  friendless  Poland 
in  1793  and  1795  added  to  Prussia  the  districts  known  now  as 
South  and  East  Prussia. 

Prussia  was  now  ready  for  her  final  rivalry  with  Austria  for 
the  leadership  of  Germany ;  but  first  there  was  to  be  the  great 
storm  of  the  Napoleonic  wars,  which  was  to  sweep  away  so 
much,  besides  the  Empire,  that  was  old  in  German  political 
arrangements,  and  create  the  proper  atmospheric  conditions 
for  German  nationality. 

394.  Napoleon:  the  Confederacy  of  the  Rhine.  —  One  of 
the  earliest  acts  of  Xapoleon  in  his  contest  with  Austria  and 
Prussia  was  to  isolate  these  two  great  German  states  by  thrust- 
ing between  them  a  barrier  of  smaller  German  states  attached 
to  the  French  interest.  So  little  coherent  was  Germany,  so 
little  had  the  Empire  made  of  the  Germans  a  single  nation, 
that  Napoleon  was  able  to  detach  from  all  alliance  with  either 
Austria  or  Prussia  every  one  of  the  German  states  except 
Brunswick  and  the  electorate  of  Hesse.  Of  these  the  chief  were, 
of  course,  the  kingdoms  of  Bavaria  and  Wiirttemberg  and  the 
grand-duchy  of  Baden.  Napoleon  organized  out  of  these  allies 
the  so-called  '  Confederacy  of  the  Ehine,'  of  which  he  consti- 
tuted himself  '  Protector,'  and  which  lasted  from  1806  till  1813. 

But,  despite  the  ease  with  which  he  at  first  divided  Ger- 
many in  order  to  conquer  it.  Napoleon  discovered  at  last  that 
he  had  himself  aroused  there  a  national  feeling  which  was  to 
cast  him  out  and  ruin  him.  In  1813  Germany  rose,  the  Con- 
federacy of  the  Bhine  went  to  pieces,  and  all  Napoleon's  plans 
were  undone.  He  had  done  Germany  the  inestimable  service 
of  making  her  patriotic. 


260 


THE  GOVERNMENTS  OF  GERMANY. 


395.  The  German  Confederation  (1815-1866). —  The  Con- 

gress  of  Yienna,  which  met  at  the  close  of  the  Napoleonic 
wars  to  recompose  Europe,  had  no  less  a  task  than  the  formal 
undoing  of  all  that  Napoleon  had  done.  It  could  not,  however, 
revivify  the  German  Empire :  that  had  been  dead  for  some 
time  before  Napoleon  forced  a  winding  up  of  its  affairs.  Ger- 
many was  not  to  remain  disintegrate,  nevertheless.  In  1815 
was  formed  the  German  Confederation  which,  loose  as  it  was, 
united  the  German  states  more  closely  than  they  had  been 
united  for  many  generations.  Austria  was  the  president  of 
the  Confederation ;  its  organ  was  a  Diet  of  ambassadors  from 
the  thirty-nine  component  states  (kingdoms,  duchies,  cities, 
principalities),  which  was  to  mediate  between  the  states  in  all 
matters  of  common  concern  ;  and  the  Confederation  maintained 
an  army  of  thirty  thousand  men.  The  arrangement  was  little 
enough  like  union :  the  large  states  had  a  preponderant  repre- 
sentation in  the  Diet,  Austria  dominating  all ;  and  each  state, 
whether  great  or  small,  was  suffered  to  go  its  own  way,  make 
its  own  alliances  and  fight  its  own  wars,  if  only  it  refrained 
from  injuring  any  one  of  the  Confederates  or  the  interests  of 
the  Confederation.  But  there  was  sufficient  cohesion  to  keep 
the  states  together  while  German  national  feeling  grew,  and 
while  the  political  revolutions  of  the  century  (1830  and  1848) 
liberalized  political  institutions. 

396.  Period  of  Constitutional  Reform. —In  1848  most  of 
the  German  states,  except  Prussia,  granted  to  their  people  con- 
stitutional government.  In  the  same  year  a  '  German  National 
Parliament '  met  at  Frankfort  (the  seat  of  the  Diet  of  the  Con- 
federation) and  attempted  to  formulate  a  plan  for  more  perfect 
union  under  the  leadership  of  Prussia ;  but  the  time  was  not 
yet  ripe  for  such  union,  and  the  attempt  failed.  Still  earlier, 
in  1833,  Prussia  had  led  in  the  formation  of  a  '  Customs  Union ' 
(ZoUverein)  between  herself  and  all  ^  the  states  of  the  Confed- 

1  The  Union  did  not  at  first  include  this  *  all/  but  it  did  eventually. 


THE  GOVERNMENTS  OF  GERMANY. 


251 


eration  except  Austria,  which  laid  the  free-trade  basis  for  those 
subsequent  political  arrangements  from  which  also  Austria  was 
to  be  excluded. 

In  1850  Prussia  received  from  the  hands  of  her  king  the 
forms,  at  least,  of  a  liberal  government,  with  parliamentary  in- 
stitutions ;  and  these  concessions,  though  at  first  largely  make- 
believe,  served  eventually  as  the  basis  for  more  substantial 
popular  liberties. 

397.  The  North  German  Confederation  (1867-1871).  — 
Finally,  in  1866,  came  the  open  breach  between  Prussia  and 
Austria.  The  result  was  a  six  weeks'  war  in  which  Austria 
was  completely  defeated  and  humiliated.  The  Confederation 
of  1815  fell  to  pieces ;  Prussia  drew  about  her  the  Protestant 
states  of  Northern  Germany  in  a  ^Xorth  German  Confedera- 
tion ' ;  the  middle  states,  Bavaria,  Wiirttemberg,  Baden,  etc., 
held  off  for  a  while  to  themselves ;  and  Austria  found  herself 
finally  excluded  from  German  political  arrangements. 

398.  Austria  out  of  Germany.  —  Since  then  Austria,  orig- 
inally predominantly  German,  has  devoted  herself  to  the  task 
of  amalgamating  the  various  nationalities  of  Southeast  Europe 
under  her  hegemony,  and  so  has  become  in  large  part  a  non- 
German  state.  Prussia  has  become  the  head  and  front  of 
Germany,  in  her  stead. 

Meantime  Prussia  has  grown  more  than  one-fifth  in  terri- 
tory. The  rearrangement  at  Vienna  in  1815  gave  her  Swedish 
Pommerania  and  the  northern  half  of  Saxony;  the  war  of 
1866  confirmed  her  in  the  possession  of  Schleswig-Holstein, 
Hannover,  Hesse-Cassel,  Hesse-Xassau,  and  Frankfort. 

399.  The  German  Empire.  —  The  finishing  impulse  was 
given  to  the  new  processes  of  union  b}^  the  Franco-Prussian 
War  of  1870-1871.  Prussia's  brilliant  successes  in  that  con- 
test, won,  as  it  seemed,  in  the  interest  of  German  patriotism 
against  French  insolence,  broke  the  coldness  of  the  middle 
states  towards  their  great  northern  neighbor ;  they  joined  the 
rest  of  Germany ;  and  the  German  Empire  was  formed  (Palace 
of  Versailles,  Jan.  18,  1871). 


252 


THE  GOVERNMENTS  OF  GERMANY. 


Go^t:rxment  of  the  Empire. 

400.  Austria  and  Germany:  Character  of  the  German 
Empire. — When  he  ceased  to  be  Emperor  of  the  Holy  Eomaii 
Empire  (1806;  sec.  381),  Erancis  1.  still  remained  Emperor  of 
Austria.  He  had  assumed  that  title  in  1804  ;  and  from  that 
day  to  this  there  has  been  in  full  form  —  what  there  had  long 
been  in  reality  —  an  Austrian  Empire.  In  1871  there  arose 
by  its  side  a  new  German  Empire,  but  the  two  empires  are 
thoroughly  unlike  one  another.  The  Austrian  Empire,  though 
w^earing  the  form  of  a  dual  monarchy  as  Austria-Hungary,  is 
composed  of  the  hereditary  possessions  of  the  House  of  Habs- 
burg;  the  German  Empire,  on  the  other  hand,  is  a  federal 
state  composed  of  four  kingdoms,  seven  grand-duchies,  four 
duchies,  seven  principalities,  three  free  cities,  and  the  imperial 
domain  of  Alsace-Lorraine,  these  lands  being  united  in  a  great 
'  corporation  of  public  law '  under  the  hereditary  presidency  of 
the  king  of  Prussia.  Its  Emperor  is  its  president,  not  its 
monarch. 

The  four  kingdoms  are  Prussia,  Bavaria,  Wiirttemberg,  and  Saxony ; 
the  grand-duchies,  Baden,  Mecklenburg-Schwerin,  Hesse,  Oldenburg, 
Brunswick,  Saxe- Weimar,  and  Mecklenburg-Strelitz ;  the  duchies,  Saxe- 
Meiningen,  Anhalt,  Saxe-Coburg,  and  Saxe-Altenburg;  the  principali- 
ties, Waldeck,  Lippe,  Schwarzburg-Rudolstadt,  Schwarzburg-Sonders- 
hausen,  Reuss-Schleiz,  Schaumburg-Lippe,  and  Reuss-Greiz ;  the  free 
cities,  Hamburg,  Liibeck,  and  Bremen. 

401.  The  Central  German  States  and  the  Empire.  —  The 

first  step  towards  union  Avas  taken  in  1870,  when  Baden,  Bavar 
ria,  and  Wiirttemberg,  fearing  that  the  object  of  Napoleon  III. 
was  to  conquer  the  central  German  states  or  renew  the  Con- 
federation of  the  Khine,  had  decisively  espoused  the  side  of 
Prussia  and  the  North  German  Confederation.  While  the 
siege  of  Paris  was  in  progress  these  three  states  sent  delegates 
to  King  William  at  Versailles  and  formally  united  themselves 
with  their  northern  compatriots :  the  North  German  Confed- 


THE  GOVERNMENTS  OF  GEKMANY. 


253 


eration  became  the  German  Confederation,  with  King  William 
as  president.  Almost  immediately,  however,  the  influences  of 
the  time  carried  the  Confederates  a  step  farther :  at  the  sugges- 
tion of  the  king  of  Bavaria,  the  president-king  was  crowned 
Emperor,  and  the  German  Confederation  became  the  German 
Empire.^ 

402.  The  Constitution  of  the  Empire. — The  new  Empire, 
however,  bears  still,  in  its  constitution,  distinctest  traces  of 
its  derivation.  It  is  still  a  distinctly  federal  rather  than 
unitary  state,  and  the  Emperor  is  still  only  its  constitutional 
president.  As  Emperor  he  occupies  not  an  hereditary  throne, 
but  only  an  hereditary  office.  Sovereignty  does  not  reside  in 
him,  but  "  in  the  union  of  German  federal  princes  and  the  free 
cities."    He  is  the  chief  officer  of  a  great  political  corporation. 

403.  The  Emperor.  —  Still  his  constitutional  prerogatives 
are  of  the  most  eminent  kind.  Unlike  other  presidents,  he  is 
irresponsible :  he  cannot  be  removed,  his  office  belonging  in- 
alienably to  the  throne  of  Prussia,  whether  its  occupant  be 
king  or  regent  only.  He  summons,  opens,  adjourns,  and  closes 
the  two  Houses  of  the  federal  legislature,  the  Bundesrath  and 
the  Reichstag,  the  latter  of  which  he  can  also,  upon  the  advice 
of  the  Bundesrath^  dissolve.  He  appoints,  and  may  at  his 
pleasure  remove,  the  Imperial  Chancellor,  who  is  both  the 
vital  centre  of  all  imperial  administration  and  chairman  of 
the  Bundesrath;  and  he  appoints  also,  under  the  countersigna- 
ture of  the  Chancellor,  all  minor  officers  of  the  imperial  ser- 
vice, whom,  with  a  like  co-operation  of  the  Chancellor,  he  may 
also,  of  course,  dismiss.  He  controls  the  foreign  affairs  of 
the  Empire  and  commands  its  vast  military  forces ;  and  in  this 
latter  capacity,  of  commander-in-chief  of  the  imperial  army, 
it  rests  with  him,  acting  with  the  consent  of  the  Bundesrath, 
to  coerce  into  obedience  such  states  of  the  Empire  as  may  at 
any  time  wilfully  and  pertinaciously  neglect  to  fulfil  their 


1  The  present  constitution  of  the  Empire  bears  date  April  16,  1871. 


254 


THE  GOVERNMENTS  OF  GERMANY. 


federal  duties.  He  has,  in  brief,  to  the  fullest  extent,  both  the 
executive  and  the  representative  functions  now  characteristic 
of  the  head  of  a  powerful  constitutional  state.  There  are  dis- 
tinct limits  to  his  power  as  Emperor,  limits  which  mark  and 
emphasize  the  federal  character  of  the  Empire  and  make  of  it 
a  state  governed  by  law,  not  by  prerogative ;  but  those  limits 
nevertheless  lie  abundantly  wide  apart.  Adding,  as  he  does, 
to  his  powers  as  hereditary  president  of  the  Empire  his  com- 
manding privileges  as  king  of  Prussia  and,  as  king  of  Prussia, 
the  dominant  member  of  the  Union,  he  possesses  no  slight 
claim  to  be  regarded  as  the  most  powerful  ruler  of  our  time. 
(Compare  sees.  319,  321,  326,  595,  604,  611,  625,  626,  637,  644, 
678,  706,  1102,  1148,  1149.) 

404.  Sovereignty  of  the  Empire  in  Legislation.  —  So  com- 
plete, so  unlike  that  of  a  mere  confederation  is  the  present 
union  of  the  German  states  that  the  sovereign  legislative  power 
of  the  Empire  is  theoretically  unlimited :  ^  it  can  by  means 
of  constitutional  amendment  set  aside  the  bounds  placed  by 
the  constitution  between  its  sphere  and  that  of  the  individual 
states,  that  is,  alter  them  without  the  consent  of  the  states ; 
it  can  also  withdraw  from  the  states  the  powers  reserved  to 
them.  In  a  certain  sense,  therefore,  it  may  be  said  that  the 
individual  states  possess  their  magisterial  rights  only  by  suf- 
ferance of  the  Empire,  only  by  virtue  of  its  will.'  ^  Amend- 
ments of  the  constitution  are  not  submitted  either  to  the 
people  or  to  the  governments  of  the  states :  nor  are  they 
passed  by  any  special  or  peculiar  procedure,  as  in  France  (sees. 
311,  318).  They  are  originated  and  acted  upon  as  ordinary 
laws  would  be.  The  only  limitations  put  upon  their  passage 
are,  first,  that  fourteen  negative  votes  in  the  Bundesrath  will 
defeat  a  proposed  amendment,  and,  second,  that  no  state  can 
be  deprived  of  any  right  guaranteed  to  it  by  the  constitution, 
without  its  own  consent.    But,  notwithstanding  this  great  con- 

1  Laband,  Das  Staatsrecht  des  deutchen  Reiches  (Marquardsen's  Hand- 
buck),  p.  22. 


THE  GOVERNMENTS  OF  GERMANY. 


255 


centration  of  sovereign  powers  in  the  legislative  authorities 
of  the  Empire,  its  constitution  still  retains  strongly  federal 
features ;  and  the  mirror  of  those  features  is  the  Bundesratli. 

405.  The  Bundesrath ;  its  Composition  and  Character.  — 

In  form  and  theory  the  Bundesrath  is  a  body  of  ambassadors. 
Its  members  represent  the  governments  of  the  states  from 
which  they  come,  and  are  accredited  to  the  Emperor  as  dip- 
lomatic agents,  plenipotentiary  charges  d'' affaires,  to  whom  he 
must  extend  the  same  protection  that  is  extended  to  the  like 
representatives  of  foreign  states.  It  is  a  fundamental  concep- 
tion of  the  German  constitution  that  '-the  body  of  German 
sovereigns  together  with  the  senates  of  the  three  free  cities, 
considered  as  a  unit,  —  tanquam  unum  corpus,  —  is  the  reposi- 
tory of  imperial  sovereignty."  ^  The  Bundesrath  is  the  repre- 
sentative of  this  body,  and  is  therefore  the  organ  through 
which  the  sovereignty  of  the  Empire  is  expressed.  The  Em- 
peror, consequently,  shares  the  sovereignty  of  the  Empire 
only  as  king  of  Prussia,  and  takes  part  in  its  exercise  only 
through  the  Prussian  members  of  the  Bundesrath.  It  follows, 
of  course,  from  this  principle  that  the  members  of  the  Bundes- 
rath are  only  the  agents  of  their  governments,  and  act  under 
instructions  from  them,  making  regular  reports  of  the  pro- 
ceedings of  the  Bundesrath  to  their  home  administrations. 
The  votes  of  a  state  are  valid,  whether  cast  by  her  represen- 
tatives in  accordance  with  their  instructions  or  not ;  but  the 
delegates  are  responsible  for  every  breach  of  instructions  to 
their  home  authorities. 

Of  course  as  a  matter  of  practice  the  delegates  to  the  Bundesrath 
receive  only  instructions  of  a  very  general,  unspecific  character,  or  none 
at  all,  seeking  special  instruction  only  for  votes  of  great  importance. 

406.  Representation  of  the  States  in  the  Bundesrath.  — 

The  states  of  the  Empire  are  unequally  represented,  accord- 
ing to  their  size.    Prussia  has  seventeen  votes  ;  Bavaria  six ; 

1  Laband,  p.  40. 


256  THE  GOVERNMENTS  OF  GERMANY. 


Saxony  and  Wiirttemberg  four  each ;  Baden  and  Hessee  each 
three ;  Mecklenburg-Schwerin  and  Brunswick  each  two  ;  the 
other  seventeen  states  one  apiece.  The  votes  of  each  state 
which  is  entitled  to  more  than  one  vote  must  be  cast  together 
as  a  unit,  and  each  such  state  can  cast  her  full  vote  whether 
or  not  she  have  her  full  number  of  representatives  present. 

The  significance  of  the  constitutional  provision  that  amendments  to 
the  constitution  may  not  pass  if  there  be  fourteen  negative  votes  cast 
in  the  Bundesrath  is  quite  evident.  A  combination  of  the  small  states 
may  defeat  any  organic  change  of  law  proposed  by  the  large  states ; 
and  Prussia  alone  can  bar  any  amendment  to  which  she  is  opposed. 
The  seventeen  votes  of  Prussia  on  the  one  side  and  the  seventeen  votes 
of  the  small  states  on  the  other  may  be  said  to  constitute  the  central 
balance  of  the  system. 

407.  Functions  of  the  Bundesrath. — The  Bundesrath  oc- 
cupies a  position  in  the  German  system  in  some  respects  not 
unlike  that  which  the  Eoman  Senate  held  in  Kome's  govern- 
ment (sec.  149).  It  is,  so  to  say,  the  residuary  legatee  of  the 
constitution ;  all  functions  not  specifically  entrusted  to  any 
other  constitutional  authority  remain  with  it ;  no  power  is  in 
principle  foreign  to  its  jurisdiction.  It  has,  therefore,  a  com- 
posite character ;  it  is  at  one  and  the  same  time  an  adminis- 
trative, a  legislative,  and  a  judicial  body. 

408.  In  its  legislative  capacity  it  may  be  considered  the 
upper  house  of  the  legislature.  It  may  originate  bills  to  be 
sent  to  the  Reichstag ;  and  its  sanction  is  indispensable  to  the 
validity  of  all  legislation.  Its  consent  must  be  had  also  to 
any  treaty  which  works  any  change  in  either  the  constitutional 
or  statutory  law  of  the  Empire  (see,  also,  sec.  409).  Members 
of  the  Bundesrath  have,  moreover,  the  right  to  express  their 
views  concerning  pending  legislation  on  the  floor  of  the  Reichs- 
tag, even  when  their  views  are  not  those  which  have  been 
accepted  by  the  majority  of  the  Bundesrath. 

409.  The  administrative  function  of  the  federal  chamber 
may  be  summed  up  in  the  word  oversight.    It  considers  all 


THE  GOVERNMENTS  OF  GERMANY. 


257 


defects  or  needs  which  discover  themselves  in  the  adminis- 
trative arrangements  of  the  Empire  in  the  course  of  the  exe- 
cution of  the  laws,  and  may  in  all  cases  where  that  duty  has 
not  been  otherwise  bestowed,  formulate  the  necessary  regula- 
tions to  cure  such  defects  and  meet  such  needs.  It  has,  more- 
over, a  voice  in  the  choice  of  some  of  the  most  important 
officers  of  the  imperial  service.  It  nominates  or  elects  the 
members  of  the  Court  of  Accounts,  of  the  Supreme  Court  of 
the  Empire  (Eeichsgericht) ,  of  the  "Chamber  of  Discipline," 
as  well  as  the  officials  who  administer  the  imperial  pension 
funds,  and  those  who  constitute  the  directory  of  the  Imperial 
Bank.  It  confirms  the  nomination,  also,  either  directly  or 
through  one  of  its  committees,  of  consuls  and  of  the  officers 
who  exercise  the  imperial  control  over  the  duties  and  taxes  laid 
•by  the  states  under  laws  of  the  Empire.  It  may  also  be 
reckoned  among  the  executive  functions  of  the  Bundesrath 
that  its  consent  is  necessary  to  a  declaration  of  war  (except 
in  case  of  invasion,  when  the  Emperor  may  act  alone),  to  a 
dissolution  of  the  Reichstag  during  a  legislative  period,  and  to 
other  like  weighty  acts  of  government. 

410.  The  judicial  functions  of  the  Bundesrath  spring  in  part 
out  of  its  character  as  the  chief  administrative  council  of  the 
Empire.  When  acting  as  such  a  council,  many  of  its  conclu- 
sions partake  of  the  nature  of  decisions  of  a  supreme  adminis- 
trative court  of  appeal.  But  its  jurisdiction  as  a  court  is  much 
wider  than  questions  of  administration.  It  can  declare  a  state 
of  the  Empire  delinquent,  and  order  execution  to  issue  against 
it.  It  is  the  court  of  highest  instance  in  every  case  of  the 
denial  of  justice  to  an  individual  in  a  state  court  arising  out  of 
a  defect  or  deficiency  in  the  law  of  the  state  ;  it  being  within  its 
competence  in  such  a  case  to  compel  the  state  to  cure  the  defi- 
ciency and  afford  the  suitor  the  proper  remedy.  It  is  the  court 
of  appeal  in  all  cases  of  dispute  between  two  or  more  states  of 
the  Empire  which  involve  not  mere  private  law  questions  (such 
cases  go  to  the  ordinary  civil  courts),  but  points  of  public  law. 


258 


THE  GOVERNMENTS  OF  GERMANY. 


In  case  it  cannot  agree  upon  a  conclusion  in  such  disputes,  the  whole 
legislative  power  is  brought  into  play  and  a  law  is  passed  covering  the 
matter  in  controversy.  If  in  any  case  it  considers  itself  unfitted  by 
its  organization,  or  for  any  other  reason,  to  act  as  a  court  in  controver- 
sies brought  before  it,  it  may  delegate  its  judicial  powers  to  a  court  or 
to  experts. 

This  it  did  in  1877  with  reference  to  the  dispute  between  Prussia  and 
Saxony  concerning  the  Berlin-Dresden  railway.^ 

411.  Organization  of  the  Bundesrath.  —  The  Imperial 

Chancellor  is  chairman  of  the  Bundesrath.  He  is  appointed  by 
the  king  of  Prussia,  and  he  must  also  be  one  of  Prussia's  seven- 
teen representatives,  —  for  it  is  the  better  opinion  among  Ger- 
man constitutional  la^vyers  that  the  Chancellor's  membership 
in  the  federal  chamber  is  necessary  to  his  presidency  of  the 
body.  In  case  of  a  tie  vote,  the  Chancellor's  vote  is  decisive  : 
that  is  to  say,  the  side  on  ivhich  Prussia's  votes  are  cast  prevails, 
for  her  vote  must  be  undivided  —  the  Chancellor's  vote  is  not 
his  own,  but  is  one-seventeenth  part  of  Prussia's  whole  vote. 

The  Chancellor  may  appoint  a  substitute  to  act  in  his  absence  as 
president,  this  limitation  resting  upon  his  choice,  that  if  he  does  not 
appoint  a  Prussian  delegate  to  the  office  he  must  appoint  a  Bavarian. 
He  may  also  appoint  a  substitute  to  perform  all  his  functions,  and  such 
an  appointment  would  of  course  include  the  presidency  of  the  Bundes- 
rath unless  a  separate  and  special  delegation  of  that  office  were  made, 
—  and  unless,  also,  perhaps,  the  general  substitute  were  not  a  member 
of  the  federal  Council. 

412.  Committees.  —  The  Bundesrath  follows,  of  course,  the 
practice  of  other  legislative  bodies  in  referring  various  matters 
to  special  committees  of  its  members.  It  has,  too,  like  other 
bodies,  certain  standing  committees.  These  are  three :  one  on 
Alsace-Lorraine,  one  on  the  Constitution,  and  one  on  the  Order 
of  Business. 

Much  more  important  than  these,  however,  are  eight  delega- 
tions of  its  members  which,  though  called  committees,  may  be 


1  Laband,  p.  43,  n. 


THE  GOVERNMENTS  OF  GERMANY. 


259 


more  properly  described  as  Commissions,  for  like  the  executive 
committee  of  our  own  Congress  under  the  old  Confederation 
(sec.  867)  they  continue  to  sit  during  the  recesses  of  the  cham- 
ber which  they  in  a  sense  represent.  Of  these  Commissions 
two  are  appointed  by  the  Emperor,  namely  a  Commission  "  for 
the  Land  Forces  and  Fortifications  "  and  a  Commission  "  for 
Naval  Affairs  "  :  five  are  chosen  yearly  by  the  Bundesrat/i, 
namely,  those  "  on  Tariffs  and  Taxation,"  "  for  Trade  and  Com- 
merce," "  for  Kailways,  Posts,  and  Telegraphs,"  "  on  Justice," 
and  "  on  Accounts  "  (Mechmmgswesen)  ;  the  eighth  and  most 
important,  the  "  Commission  on  Foreign  Affairs,"  consists  of 
the  representatives  of  Bavaria,  Saxony,  and  Wiirttemberg,  and 
of  two  other  members  chosen  by  the  Bundesrath.  At  least 
five  states  must  be  represented  on  each  of  these  Commissions, 
and  Prussia  must  always  be  one  of  the  five,  except  in  the  case 
of  the  Commission  on  Foreign  Affairs.  On  this  last  Prussia 
needs  no  representation;  she  has  committed  to  her,  through 
her  king  who  is  also  Emperor,  the  whole  conduct  of  the  foreign 
affairs  of  the  Empire ;  the  Commission  is  appointed  simply  to 
watch  the  course  of  international  relations,  and  to  inform  the 
several  states  of  the  posture  of  foreign  affairs  from  time  to 
time.  "  It  has  to  prepare  no  conclusion  for  the  Bundesrath  and 
to  make  no  reports  to  it :  it  serves  to  receive  communications 
concerning  the  foreign  affairs  of  the  Empire  and  to  exchange 
opinions  with  the  imperial  administration  concerning"  those 
affairs.^  Its  action  is  thus  independent  of  its  connection  with 
the  Bundesrath  ;  and  this  is  the  chief  point  of  contrast  between 
it  and  the  other  Commissions.  Their  duties  are  principally  to 
the  Bundesrath :  they  for  the  most  part  only  make  reports  to  it. 

Besides  their  right  to  representation  on  the  Commission  on  Foreign 
Affairs,  of  which  Bavaria  has  the  presidency,  Wiirttemberg,  Bavaria, 
and  Saxony  have  also  the  right  to  appointments  on  the  Commissions 
for  Land  Forces  and  Fortifications  and  for  Naval  Affairs  which  it  is  the 
privilege  of  the  Emperor  to  name. 


1  Laband,  p.  46. 


260 


THE  GOVERNMENTS  OF  GER3^IANY. 


Prussia  is  entitled  to  the  presidency  of  all  the  Commissions  except 
that  on  Foreign  Affairs. 

Each  state  represented  has  one  vote  in  the  action  of  a  Commission, 
and  a  simple  majority  controls. 

413.  The  Reichstag  :  its  Character  and  Competence. — It 

would  lead  to  very  serious  misconceptions  to  regard  the  Bundes- 
rath  and  the  Beichstag  as  simply  the  two  houses  of  the  impe- 
rial legislature,  unlike  each  other  only  in  some  such  way  as  our 
Senate  and  House  of  Eepresentatives  are  unlike,  only,  i.e.,  be- 
cause the  upper  house  is  differently  constituted  and  is  entrusted 
with  a  certain  share  in  functions  not  legislative.  Properly  con- 
ceived, the  Bundesrath  and  Beichstag  stand  upon  a  very  dif- 
ferent footing  with  reference  to  each  other.  The  legislative 
functions  of  the  Bundesrath  are  only  incidental  to  its  charac- 
ter as  representative  organ  of  the  sovereign  body  of  the  Em- 
pire, the  "  body  of  German  sovereigns  and  the  senates  of  the 
free  cities."  It  sanctions  legislative  measures  passed  by  the 
Reichstag,  rather  than  legislates ;  and  legislation  is  no  more 
peculiarly  its  business  than  is  the  superintendence  of  adminis- 
tration or  the  exercise  of  judicial  functions.  It,  as  part  of  the 
administration,  governs ;  the  Beichstag,  as  representing  the 
German  people,  controls.  The  control  of  the  Beichstag  is  ex- 
ercised, not  only  through  its  participation  in  legislation,  but 
also  through  the  giving  or  withholding  of  its  sanction  to  cer- 
tain ordinances  to  whose  validity  the  constitution  makes  its 
concurrence  necessary ;  through  its  power  of  refusing  to  pass 
the  necessary  laws  for  the  execution  of  treaties  of  which  it 
does  not  approve ;  through  its  right  to  inquire  into  the  conduct 
of  affairs  ;  and  through  its  right  of  remonstrance.  Its  powers 
are  not  enumerated ;  they  are,  exercised  in  one  form  or  another, 
as  wide  as  the  activities  of  the  Empire.  The  legislative  com- 
petence of  the  Empire  is,  since  1873,  legally  unlimited  as  to 
private  law:  it  covers  the  whole  field  of  civil  and  criminal 
enactment,  though  as  a  matter  of  fact  it  has  been  exercised  as 
yet  only  over  a  part  of  that  field ;  much  the  greater  part  of 


THE  GOVERNMENTS  OF  GERMANY. 


261 


private  law  has  been  left  to  the  regulation  of  the  several 
states. 

414.  Composition  of  the  Reichstag.  — The  Reichstag  repre- 
sents, not  the  states,  or  the  people  of  the  several  states  regarded 
separately,  but  the  whole  German  people.  Representation  is 
distributed  on  the  basis  of  one  representative  to  every  one 
hundred  thousand  inhabitants.  Representatives  are,  however, 
elected  by  districts,  one  for  each  district,  and  no  district  may 
cross  a  state  line  and  include  territory  lying  in  more  than 
one  state.  If,  therefore,  any  state  of  the  Empire  have  less  than 
one  hundred  thousand  inhabitants,  it  may,  nevertheless,  con- 
stitute a  district  and  send  a  representative  to  the  Reichstag. 

The  Reichstag  at  present  (1889)  consists  of  three  hundred  and  ninety- 
seven  members ;  and  of  this  number  Prussia  returns  two  hundred  and 
thirty-six. 

415.  The  members  of  the  Reichstag  are  elected  for  a  term 
of  five  years  ^  by  universal  suffrage  and  secret  ballot.  The 
voting  age  in  Germany  is  twenty-five  years  ;  and  that  is  also, 
of  course,  the  earliest  age  of  eligibility  to  the  Reichstag. 

The  election  districts  are  determined  in  the  northern  states  according 
to  laws  passed  under  the  North  German  Confederation ;  in  Bavaria,  by 
the  Bavarian  legislature ;  in  the  other  southern  states,  by  the  Bundes- 
rath.  The  subdivisions  of  the  districts,  the  voting  precincts,  are  deter- 
mined by  the  administrations  of  the  states. 

An  absolute  majority  is  required  for  election.  In  case  no  candidate 
receives  such  a  majority,  the  commissioner  of  election, —  an  officer 
appointed  by  the  administration  for  each  district,  —  is  to  order  a  new 
election  to  take  place  within  fourteen  days  after  the  official  publication 
of  the  result  of  the  first,  the  voting  to  be  for  the  two  candidates  who 
received  the  highest  number  of  votes.  Should  this  second  election 
result  in  a  tie  the  lot  decides. 

416.  Election  to  the  Reichstag  takes  place,  not  on  days  set 
by  statute,  but  on  days  appointed  by  executive  decree,  as  in 

1  By  a  law  of  March  19,  1888,  to  take  effect  after  the  legislative  period 
1887-'90. 


262 


THE  GOVERNMENTS  OF  GERMANY. 


France  (sec.  315).  For  the  Reichstag  may  be  dissolved  by  the 
Emperor,  with  the  consent  of  the  Bundesrath  (by  a  vote  in 
which  Prussia  concurs)  before  the  completion  of  its  regular 
term  of  five  years. 

In  case  of  a  dissolution,  a  new  election  must  be  ordered  within  sixty 
days,  and  the  Reichstag  must  reassemble  within  ninety  days. 

The  Emperor  may  also  adjourn  the  Reichstag  without  its  own  con- 
sent (or,  in  English  phrase,  prorogue  it)  once  during  any  session,  for 
not  more  than  thirty  days. 

417.  Sessions  of  the  Reichstag.  —  The  Reichstag  meets  at 
the  call  of  the  Emperor,  who  must  call  it  together  at  least  once 
each  year ;  he  may  convene  it  oftener.  He  must  summon  at 
the  same  time  the  Bundesrath.  The  sessions  of  the  Reichstag 
must  be  public  ;  it  is  not  within  its  choice  to  make  them  pri- 
vate. A  private  session  is  regarded  as,  legally,  only  a  private 
conference  of  the  members  of  the  Reichstag  and  can  have  no 
public  authority  whatever. 

Members  of  the  Reichstag  who  accept  a  salaried  oflS^ce  under  the 
Empire  or  one  of  the  states,  or  an  imperial  or  state  office  of  higher 
rank  or  power  than  any  they  may  have  held  when  elected,  must  resign 
and  offer  themselves  for  re-election  (compare  sec.  683). 

418.  Organization  of  the  Reichstag.  —  The  Reichstag  elects 
its  own  President,  Vice-presidents  (2),  and  Secretaries.  For 
the  facilitation  of  its  business,  it  divides  itself  by  lot  into 
seven  'Sections'  (Abtheilungen) ,  every  Section  being  made  to 
contain,  as  nearly  as  may  be,  the  same  number  of  members  as 
each  of  the  others.  These  Sections  divide  among  them  the 
work  of  verifying  the  election  of  members  and  the  choice 
of  special  committees.  The  Reichstag  has  no  standing  com- 
mittees ;  but  from  time  to  time,  as  convenience  suggests, 
temporary  committees  are  named,  whose  duty  it  is  to  prepare 
information  for  the  body,  which  they  present  in  reports  of 
a  general  nature.  These  committees  it  is  which  the  Sections 
select.  Each  Section  contributes  its  quota  of  members  to  each 
committee. 


THE  GOVERNMENTS  OF  GERMANY. 


263 


419.  Course  of  Legislation.  —  One-half  of  the  members  constitute 
a  quorum.    An  absolute  majority  is  requisite  for  a  valid  vote. 

Every  measure  passes  through  three  readings.  On  the  first  there  is 
a  general  debate  on  the  question  whether  the  matter  shall  be  referred 
to  a  committee  or  be  taken  up  at  once  by  the  body  itself  (in  plenum)  ; 
on  the  second,  the  individual  clauses  of  the  bill,  and  amendments  to 
each  clause,  are  considered ;  on  the  third,  the  work  of  the  second  reading 
is  debated  as  a  whole  (amendments  being  admitted  only  if  supported 
by  thirty  members),  votes  are  taken  on  the  clauses  and  amendments 
seriatim,  and  then  a  vote  is  had  upon  the  entire  measure  as  completed. 

420.  Election  of  Officers.  —  The  initial  constitution  of  a  newly 
elected  Reichstag  is  interesting.  It  comes  to  order  under  the  presidency 
of  the  oldest  member;  it  then  elects  its  president,  two  vice-presidents, 
and  secretaries ;  the  president  and  vice-presidents  for  a  term  of  only 
four  weeks.  At  the  end  of  these  four  weeks  a  president  and  vice- 
presidents  are  elected  for  the  rest  of  the  session.  There  is  no  election 
of  oflBcers  for  the  whole  legislative  term,  as  in  England  and  the  United 
States :  at  the  opening  of  each  annual  session  a  new  election  takes 
place.  It  is  only  at  the  first,  however,  that  there  is  a,  so  to  say,  experi- 
mental election  for  a  trial  term  of  four  weeks. 

421.  Imperial  Administration.  —  While  the  distinction  be- 
tween the  executive  and  legislative  functions  of  government 
is  sharply  enough  preserved  in  Germany,  no  equally  clear  dis- 
crimination is  made  in  practice  between  executive  and  judicial 
functions.  The  judiciary  is  a  branch  of  the  administration. 
The  caption  '  Imperial  Administration '  covers,  therefore,  all 
activities  of  the  government  of  the  Empire  which  are  not 
legislative. 

Although  it  is  a  fundamental  principle  of  the  imperial  con- 
stitution that  '  the  Empire  has  sovereign  legislative  power,  the 
states  only  autonomy,'  the  Empire  has  heretofore  occupied 
only  a  part  of  the  great  field  thus  opened  to  it,  and  has  con- 
fined itself  as  a  rule  to  mere  oversight,  leaving  to  the  states 
even  the  execution  of  most  imperial  laws. 

The  judges  of  all  but  the  supreme  imperial  court,  for  instance,  the 
tariff  officials  and  gangers,  the  coast  officers,  and  the  district  military 
authorities,  are  all  state  officers. 


264 


THE  GOVERNMENTS  OF  GERMANY. 


422.  The  Imperial  Chancellor.  —  The  Empire  has,  of  course, 
however,  its  own  distinct  administrative  organs,  through  which 
it  takes,  whether  through  oversight  simply  or  as  a  direct  ex- 
ecutive, a  most  important  and  quite  controlling  part  in  affairs ; 
and  the  head  and  centre  of  its  administration  is  the  Imperial 
Chancellor,  an  officer  who  has  no  counterpart  in  any  other  con- 
stitutional government. 

(1)  Looked  at  from  one  point  of  view,  the  Chancellor  may 
be  said  to  be  the  Emperor's  responsible  self.  If  one  could 
clearly  grasp  the  idea  of  a  responsible  constitutional  monarch 
standing  beside  an  irresponsible  constitutional  monarch  from 
whom  his  authority  was  derived,  he  would  have  conceived  the 
real,  though  not  the  theoretical,  character  of  the  Imperial 
Chancellor  of  Germany.  He  is  the  Emperor's  responsible 
proxy.  Appointed  by  the  Emperor  and  removable  at  his  pleas- 
ure, he  is  still,  while  he  retains  his  office,  virtually  supreme 
head  of  the  state,  standing  between  the  Emperor  and  the  Reich- 
stag, as  the  butt  of  all  criticism  and  the  object  of  all  punish- 
ment. He  is  not  a  responsible  minister  in  the  English  or 
Erench  sense  (sees.  327,  686,  687) ;  there  is,  strictly  speaking,  no 
^parliamentary  responsibility'  in  Germany.  In  many  respects, 
it  is  true,  the  Chancellor  does  occupy  with  regard  to  the  Reich- 
stag much  the  same  position  that  a  French  or  English  ministry 
holds  towards  the  representatives  of  the  people  ;  he  must  give 
an  account  of  the  administration  to  them.  But  an  adverse 
vote  does  not  unseat  him.  His  ^responsibility'  does  not 
consist  in  a  liability  to  be  forced  to  resign,  but  consists  simply 
in  amenability  to  the  laws.  He  does  not  represent  the  majority 
in  the  Reichstag,  but  he  must  obey  the  law. 

This  '  responsibility '  of  the  Chancellor's,  so  far  as  it  goes,  shields, 
not  the  Emperor  only,  but  also  all  other  ministers.  "The  constitution 
of  the  Empire  knows  only  a  single  administrative  chief,  the  Imperial 
Chancellor."  ^ 

So  all-inclusive  is  the  representative  character  of  the  chancellorship 
1  Laband,  p.  57. 


THE  GOVERNMENTS  OF  GERMANY.  265 

that  all  powers  not  specifically  delegated  to  others  rest  with  the  Chan- 
cellor. Thus,  except  when  a  special  envoy  is  appointed  for  the  pur- 
pose, he  conducts  all  negotiations  with  foreign  powers.  He  is  also 
charged  with  facilitating  the  necessary  intercourse  between  the  Bundes- 
rath  and  the  Reichstag. 

The  Chancellor's  relation  to  the  Reichstag  is  typified  in  his 
duty  of  submitting  to  it  the  annual  budget  of  the  Empire. 

423.  (2)  Still  further  examined,  the  chancellorship  is  found 
to  be  the  centre,  not  only,  but  also  the  source  of  all  de- 
partments of  the  administration.  Theoretically  at  least  the 
chancellorship  is  the  Administration :  the  various  departments 
now  existing  are  offshoots  from  it,  differentiations  within  its 
all-embracing  sphere.  In  the  official  classification  adopted  in 
German  commentaries  on  the  public  law  of  the  Empire,  the 
Chancellor  constitutes  a  class  by  himself.^  There  are  (1) 
The  Imperial  Chancellor,  (2)  Administrative  officials,  (3)  Inde- 
pendent {i.e.,  separate)  financial  officials,  and  (4)  Judicial 
officials.   The  Chancellor  dominates  the  entire  imperial  service. 

424.  (3)  A  third  aspect  of  the  Chancellor's  abounding  au- 
thority is  his  superintendency  of  the  administration  of  the 
laws  of  the  Empire  by  the  states.  With  regard  to  the  large 
number  of  imperial  laws  which  are  given  into  the  hands  of 
the  several  states  to  be  administered,  the  Empire  may  not  only 
command  what  is  to  be  done,  but  may  also  prescribe  the  way 
in  which  it  shall  be  done :  and  it  is  the  duty  of  the  Chancellor 
to  superintend  the  states  in  their  performance  of  such  behests. 
In  doing  this  he  does  not,  however,  deal  directly  with  the 
administrative  officials  of  the  states,  but  with  the  state  gov- 
ernments to  whom  those  officials  are  responsible.  In  case  of 
conflict  between  the  Chancellor  and  the  government  of  a  state, 
the  Bundesrath  decides. 

The  expenses  of  this  administration  of  federal  laws  by  the  states 
fall  upon  the  treasuries  of  the  states  themselves,  not  upon  the  treas- 
ury of  the  Empire.    Such  outlays  on  the  part  of  the  states  constitute 

1  Laband,  p,  56. 


266 


THE  GOVERNI^rENTS  OF  GERMANY. 


a  part  of  their  contribution  to  the  support  of  the  imperial  govern- 
ment. 

The  states  are  required  to  make  regular  reports  to  the  imperial  gov- 
ernment concerning  their  conduct  of  imperial  administration. 

425.  (4)  When  acting  in  the  capacity  of  chairman  of  the 
Bimdesrath,  the  Chancellor  is  simply  a  Prussian,  not  an  im- 
perial, official.  He  represents  there,  not  the  Emperor,  for  the 
Emperor  as  Emperor  has  no  place  in  the  Bundesrath,  but  the 
king  of  Prussia. 

426.  The  Vice-Chancellorship.  —  The  laws  of  the  Empire  make  a 
double  provision  for  the  appointment  of  substitutes  for  the  Chancellor. 
As  I  have  already  said,  in  connection  with  his  presidency  of  the  Bun- 
desrath (sec.  411),  he  may  himself  appoint  a  substitute,  for  whose  acts 
he  is,  however,  responsible.  In  addition  to  this  a  law  of  17  March, 
1878,  empowers  the  Emperor  to  appoint  a  responsible  Vice-chancellor. 
This  appointment  is  made,  upon  the  motion  of  the  Chancellor  himself, 
for  the  administration  of  all  or  any  part  of  his  duties,  when  he  is  him- 
self hindered,  even  by  an  overweight  of  business,  from  acting;  the 
Chancellor  himself  judging  of  the  necessity  for  the  appointment.  The 
Chancellor  may  at  any  time,  too,  resume  any  duties  that  may  have 
been  entrusted  to  the  Vice-chancellor,  and  himself  act  as  usual.  He 
is  thus,  in  effect,  ultimately  responsible  in  every  case,  —  even  for 
the  non-exercise  of  his  office.  The  vice-chancellorship  is  only  a  con- 
venience. 

427.  Foreign  Affairs.  —  The  full  jurisdiction  over  the  for- 
eign affairs  of  the  Empire  conferred  upon  the  imperial  govern- 
ment by  the  constitution  of  the  Empire  does  not  exclude  the 
several  states  from  having  their  own  independent  dealings 
with  foreign  courts :  it  only  confines  them  in  such  dealings  to 
matters  which  concern  them  without  immediately  affecting 
imperial  interests.  The  subject  of  extradition,  for  instance, 
of  the  furtherance  of  science  and  art,  of  the  personal  relations 
and  private  affairs  of  dynasties,  and  all  matters  which  affect 
the  interests  of  private  citizens  individually,  are  left  to  be 
arranged,  if  the  states  will,  independently  of  the  imperial  For- 
eign Office.    The  states,  therefore,  have  as  full  a  right  to  send 


THE  GOVERNMENTS  OF  GERMANY. 


267 


ambassadors  for  their  own  constitutional  purposes  as  the  Em- 
pire has  to  send  ambassadors  for  its  greater  objects  affecting 
the  peace  and  good  government  of  Europe.  It  may  thus  often 
happen  that  the  Empire  and  several  of  the  states  of  the  Em- 
pire are  at  the  same  time  separately  represented  at  one  and 
the  same  court.  In  the  absence  of  special  representatives 
from  the  states,  their  separate  interests  are  usually  cared  for 
by  the  representative  of  the  Empire.  The  department  of  the 
imperial  administration  which  has  charge  of  the  international 
relations  of  the  Empire  is  known  as  the  Foreign  Office  simply 
(das  Auswdrtige  Amt). 

428.  Internal  Affairs.  —  The  general  rule  of  government  in 
Germany,  as  I  have  said,  is  that  administration  is  left  for  the 
most  part  to  the  states,  only  a  general  superintendence  being 
exercised  by  the  imperial  authorities.  But  the  legislative 
sphere  of  the  Empire  is  very  much  wider  than  is  the  legis- 
lative sphere  of  the  central  government  in  any  other  federal 
state.  Imperial  statutes  prescribe  in  very  great  variety  the 
laws  which  the  states  administer,  and  are  constantly  extending 
farther  and  farther  their  lines  of  prescription.  From  the  Em- 
pire emanate  not  only  laws  which  it  is  of  the  utmost  moment 
to  have  uniform,  —  such  as  laws  of  marriage  and  divorce,  —  but 
also  laws  of  settlement,  poor  laws,  laws  with  reference  to  in- 
surance, and  even  veterinary  regulations.  Its  superintendence 
of  the  local  state  administration  of  imperial  laws,  moreover,  is 
of  a  very  active  and  systematic  sort. 

429.  Weights  and  Measures.  — Imperial  methods  of  super- 
vision are  well  illustrated  in  the  matter  of  weights  and  meas- 
ures. The  laws  with  reference  to  the  standard  weights  and 
measures  to  be  used  in  commerce  are  passed  by  the  imperial 
legislature  and  administered  by  state  officials  acting  under  the 
direction  and  in  the  pay  of  the  state  authorities  ;  but  thorough 
control  of  these  state  officials  is  exercised  from  Berlin.  There 
is  at  the  capital  a  thoroughly  organized  Weights  and  Measures 
Bureau  (Normal-Eichungskommission),  which  supplies  standard 


268 


THE  GOVERNMENTS  OF  GERMANY. 


weights  and  measures,  superintends  all  the  technical  business 
connected  with  the  department,  and  is  in  constant  and  direct 
association  with  the  state  officials  concerned,  to  whom  it  issues 
from  time  to  time  specific  instructions. 

430.  Money.  —  With  regard  to  money  the  control  of  the 
Empire  is,  as  might  be  expected,  more  direct.  The  states  are 
forbidden  to  issue  paper  money,  and  imperial  legislation  alone 
determines  money -issue  and  coinage.  But  even  here  the  states 
are  the  agents  of  the  Empire  in  administration.  Coining  is  en- 
trusted to  state  mints,  the  metal  to  be  coined  being  distributed 
equally  among  them.  This,  however,  is  not  really  state  coin- 
age. These  state  mints  are  the  mere  agents  of  the  imperial 
government :  they  coin  only  so  much  as  they  are  commanded  to 
coin ;  they  operate  under  the  immediate  supervision  of  impe- 
rial commissioners ;  and  the  costs  of  their  work  are  paid  out  of 
the  imperial  treasury.  They  are  state  mints  only  in  this,  that 
their  officers  and  employees  are  upon  the  rolls,  not  of  the 
imperial,  but  of  the  state  civil  service.  The  Empire  would 
doubtless  have  had  mints  of  its  own  had  these  not  already 
existed  ready  to  its  hand. 

431.  Railways.  —  The  policy  of  the  Empire  with  reference 
to  the  management  of  the  railways  is  as  yet  but  partially 
developed.  The  Empire  has  so  far  made  comparatively  little 
use  of  the  extensive  powers  granted  it  in  this  field  by  its  con- 
stitution. It  could  virtually  control ;  but  it  in  practice  only 
oversees  and  advises.  The  Imperial  Railway  Office  (Reichs- 
Eisenhahnamt)  has  advisory  rather  than  authoritative  func- 
tions ;  its  principal  supervisory  purpose  is  the  keeping  of  the 
various  roads  safe  and  adequately  equipped.  The  railways 
are  owned  in  large  part  by  the  several  states ;  and  the  states 
are  bound  b}^  the  constitution  to  administer  them,  not  inde- 
pendently or  antagonistically,  but  as  parts  of  a  general  German 
system.  Here  again  the  Empire  has  refrained  from  passing 
any  laws  compelling  obedience  to  the  constitution  on  this 
point  J  possibly  because  the  states  have  assiduously  complied 


THE  GOVERNMENTS  OF  GERMANY. 


269 


of  their  own  accord.  Using  the  Bundesrath  for  informal  con- 
ference on  the  matter  (though  the  Bundesrath  has  no  consti- 
tutional authority  in  railway  administration)  they  have  effected 
satisfactory  co-operative  arrangements. 

The  railways  of  Bavaria  stand  upon  a  special  footing :  for  Bavaria 
came  into  the  federation  on  special  terms,  reserving  an  independence 
much  greater  than  the  other  states  retain  in  the  management  of  her 
army,  her  railways,  and  her  posts  and  telegraphs. 

For  military  purposes,  the  Empire  may  command  the  services  of  the 
railways  very  absolutely.  It  is  as  aids  to  military  administration  pri- 
marily that  their  proper  construction  and  efficient  equipment  are  in- 
sisted on  through  the  Imperial  Railway  Office.  Even  the  Bavarian 
railroads  may  be  absolutely  controlled  when  declared  by  formal  impe- 
rial legislative  action  to  be  of  military  importance  to  the  Empire. 
With  reference  to  any  but  the  Bavarian  roads  a  simple  resolution  of 
the  Bundesrath  alone  suffices  for  this  declaration. 

The  duty  of  the  states  to  administer  their  roads  as  parts  of  a  single 
system  is  held  to  involve  the  running  of  a  sufficient  number  of  trains  to 
meet  all  the  necessities  of  passenger  and  freight  traffic,  the  running  of 
through  coaches,  the  maintenance  of  proper  connections,  the  affording 
of  full  accommodations,  etc. 

At  times  of  scarcity  or  crisis,  the  Emperor  may,  with  the  advice  of 
the  Bundesrath,  prescribe  low  tariffs,  within  certain  limits,  for  the  trans- 
portation of  certain  kinds  of  provisions. 

432.  Posts  and  Telegraphs.  —  Here  the  administrative  ar- 
rangements of  the  Empire  are  somewhat  complicated.  Bavaria 
and  Wiirttemberg  retain  their  own  systems  and  a  semi-indepen- 
dence in  their  administration,  just  as  Bavaria  does  with  regard 
to  her  railways  also ;  being  subject  to  only  so  much  of  imperial 
regulation  as  brings  their  postal  and  telegraphic  services  into 
a  necessary  uniformity  with  those  of  the  Empire  at  large.  In 
most  of  the  states  the  imperial  authorities  directly  administer 
these  services ;  in  a  few,  —  Saxony,  Saxe-Altenburg,  the  two 
Mecklenburgs,  Brunswick,  and  Baden,  —  there  is  a  sort  of  part- 
nership between  the  states  and  the  Empire.  The  principle 
throughout  is,  however,  that  the  Empire  controls. 


270 


THE  GOVERNMENTS  OF  GERMANY. 


433.  Patents,  etc.  —  Besides  the  administrative  activities  with  refer- 
ence to  internal  affairs  which  I  have  mentioned,  the  Empire  issues 
patents,  grants  warrants  to  sea-captains,  naval  engineers,  steersmen,  and 
pilots ;  and  examines  sea-going  vessels  with  a  view  to  testing  their  sea- 
worthiness. 

434.  Military  and  Naval  Affairs. — The  Empire  as  such 
has  a  navy,  but  no  troops.  Prussia  is  the  only  state  of  the 
Empire  that  ever  maintained  a  naval  force,  and  she  has  freely 
resigned  to  the  Empire,  which  she  virtually  controls,  the  ex- 
clusive direction  of  naval  affairs.  But  the  case  is  different,  in 
form  at  least,  with  the  army.  That  is  composed  of  contingents 
raised,  equipped,  drilled,  and,  in  all  but  the  highest  commands, 
officered  by  the  states.  This  at  least  is  the  constitutional  ar- 
rangement :  the  actual  arrangement  is  different.  Only  Bavaria, 
Saxony,  Wiirttemberg,  and  Brunswick  really  maintain  separate 
military  administrations.  The  other  states  have  handed  over 
their  military  prerogatives  to  the  king  of  Prussia ;  and  Bruns- 
wick also  has  organized  her  contingent  in  close  imitation  of 
and  subordination  to  the  Prussian  army.  Bavaria's  privileges 
extend  even  to  the  appointment  of  the  commander  of  her  con- 
tingent. The  Emperor  is  commander-in-chief,  however,  appoint- 
ing all  the  higher  field  officers  ;  and  the  imperial  rules  as  to 
recruitment,  equipment,  discipline,  and  training,  of  troops,  and 
as  to  the  qualifications  and  relative  grading  of  officers  are  of  the 
most  minute  kind  and  are  imperative  with  regard  to  all  states 
alike.  The  language  of  the  constitution  in  this  connection  is  : 
"  To  the  Emperor  belongs  the  uniform  regulation  and  ordering 
of  the  army,  the  supreme  command  in  war  and  peace,  the  de- 
termination of  recruiting  needs,  and  of  expense  accounts ;  to 
the  individual  states  remain  command  of  the  contingents,  and 
[military]  self-government." 

435.  Finance.  — The  expenses  of  the  Empire  are  met  partly 
from  imperial  revenues,  and  partly  from  contributions  by  the 
states.  The  Empire  levies  no  direct  taxes  ;  its  revenues  come 
principally  from  customs  duties  and  excises,  certain  stamp 


THE  GOVERNMENTS  OF  GERMANY. 


271 


taxes,  the  profits  of  the  postal  and  telegraph  system,  of  impe- 
rial railways,  of  the  imperial  bank,  and  like  sources.  So  far  as 
these  do  not  suffice,  the  states  assist,  being  assessed  according 
to  population.  And  here,  again,  the  states  undertake  much 
of  the  actual  work  of  administration  :  the  customs  officials,  for 
example,  being  state  officers  acting  under  imperial  supervision. 
The  financial  bureaux,  like  all  other  branches  of  the  imperial 
government,  are  immediately  subordinated  to  the  Imperial 
Chancellor. 

436.  Justice.  —  In  the  administration  of  justice,  as  in  so 
many  other  undertakings  of  government,  the  Empire  superin- 
tends, merely,  and  systematizes.  The  state  courts  are  also 
courts  of  the  Empire  :  imperial  law  prescribes  for  them  a  uni- 
form organization  and  uniform  modes  of  procedure :  and  at  the 
head  of  the  system  stands  the  Imperial  Court  (Beichsgericht) 
at  Leipzig,  created  in  1877  as  the  supreme  court  of  appeal.  The 
state  governments  appoint  the  judges  of  the  state  courts  and 
determine  the  judical  districts ;  but  imperial  laws  fix  the  quali- 
fications to  be  required  of  the  judges,  as  well  as  the  organi- 
zation that  the  courts  shall  have.  The  decisions  of  the  court 
at  Leipzig  give  uniformity  to  the  system  of  law. 

437.  Citizenship. — Every  citizen  of  a  state  of  the  Empire 
is  a  citizen  of  the  Empire  also  and  may  enjoy  the  rights  and 
immunities  of  a  citizen  in  every  part  of  the  Empire ;  but  citi- 
zenship is  conferred  by  the  states,  not  by  the  Empire.  There  is 
no  imperial  naturalization  law ;  each  state  admits  to  citizenship 
on  its  own  terms.  There  is  in  this  a  reminiscence  of  the  con- 
federate idea,  as  if  there  were  no  federal  state  (Bundesstaat) 
but  only  a  confederation  of  states  (Staatenhund)  (compare 
sees.  915-920) .  Citizenship  of  the  Empire  is  only  mediate,  — 
through  a  state.  The  obligations  of  the  citizen  to  the  Em- 
pire are  none  the  less  strong,  however.  His  duty  of  allegiance 
to  the  imperial  government  is  as  direct  as  his  duty  to  obey 
the  government  of  his  state. 


272 


THE  GOVERNMENTS  OF  GERMANY. 


The  Government  of  Prussia.^ 

438.  The  organization  of  government  in  Prussia  has,  for  the 
student  of  German  political  institutions,  a  double  interest  and 
importance.  In  the  first  place,  Prussia's  king  is  Germany's 
Emperor,  and  Prussia  is  the  presiding  state  of  the  Empire : 
many  of  her  executive  bureaux  are  used  as  administrative  agen- 
cies of  the  Empire.  Her  government  is  to  a  certain  extent  an 
organ  and  representative  of  the  imperial  government.  In  the 
second  place,  Prussia's  administrative  system  serves  as  a  type 
of  the  highest  development  of  local  government  in  Germany. 
Prussia  has  studied  to  be  more  perfect  than  any  other  European 
state  in  her  administrative  organization. 

439.  Stages  of  Administrative  Development.  —  Until  the 
time  when  she  emerged  from  the  long  period  of  her  develop- 
ment as  the  Mark  Brandenburg  and  took  her  place  among  the 
great  military  states  of  Europe,  Prussia's  administrative  organ- 
ization was  of  a  very  crude  sort,  not  much  advanced  beyond  the 
mediaeval  pattern.  Later,  under  the  Great  Elector  and  his  im- 
mediate successors,  though  well  out  of  her  early  habits,  she  was 
still  little  more  than  a  mere  military  state,  and  her  administra- 
tion, though  more  highly  developed,  had  almost  no  thought  for 
anything  but  the  army.  Only  since  the  close  of  the  Napo- 
leonic wars  has  her  system  of  government  become  a  model  of 
centralized  civil  order. 

440.  History  of  Local  Government.  —  It  must  of  course  be 
remembered  that  in  dealing  with  Prussian  local  government 
we  are  dealing  with  a  complex  of  historical  members.  The 
Prussia  of  to-day  is  not  Brandenburg  merely,  but  Pommerania, 
Silesia,  Hannover,  a  score  of  now  compacted  provinces  which 
once  had  their  se]3arate  existence  and  their  own  individual  his- 
tories. Brandenburg  may,  however,  be  made  to  serve  as  a  norm 
in  the  story,  inasmuch  as  she  has  dominated  and  the  others 

1  The  present  constitution  of  Prussia  was  proclaimed  April  30,  1851. 


THE  GOVERNMENTS  OF  GERMANY. 


273 


have  in  great  part  conformed  to  her  standards  and  her  organ- 
ization. The  royal,  centralizing,  systematizing  forces  have 
worked  outwards  from  her,  receiving  local  modifications,  but 
impressing  much  of  uniformity.  The  process  is  even  yet  in- 
complete, but  its  drift  is  unmistakable  and  decisively  estab- 
lished. 

441.  Early  Organization  in  the  Mark  Brandenburg.  —  We 

have  already  seen  what  were  the  circumstances  of  the  conquest 
and  settlement  of  the  Mark  Brandenburg  (sec.  383).  The 
German  colonists  were  invited  to  the  Mark  by  easy  conditions 
of  tenure;  towns  were  built  upon  contract,  special  privileges 
being  accorded  the  contractors ;  and  at  first  the  complexities 
of  the  feudal  system  were  kept  out  by  the  direct  relations 
sustained  by  the  settlers  and  town-builders  to  the  Mark- 
graf.  Under  the  double  system  of  conquest  and  settlement 
there  emerged  three  classes  of  towns :  (1)  The  original 
Wendish  towns  which  the  conquerors  found  already  estab- 
lished. These  became  German  and  were  accorded  special 
privileges  which  gave  them  a  separate  standing  in  the  new 
political  order.  (2)  "Bourgs,"  or  fortresses,  around  which 
colonists  had  clustered,  and  which,  finally  losing  their  mili- 
tary organization  and  spirit,  as  the  times  became  peaceful,  or 
wars  passed  beyond  them  to  the  advanced  frontiers  of  the 
Mark,  took  on  the  ordinary  features  of  a  civil  municipality. 
(3)  Full-grown  villages  or  trading  settlements.  Many  of  the 
towns,  of  course,  fell  in  spite  of  themselves  into  the  feudal 
order,  as  that  fixed  itself  upon  the  Mark,  and  became  manorial 
boroughs ;  but  some  kept  for  a  very  long  time  their  separate- 
ness  and  semi-independence. 

442.  The  Early  Local  Officials. —  The  Markgraf  and  the 
various  princes  and  greater  landlords  who  presently  took  their 
places  in  the  expanding  Mark  kept  their  hold  upon  the  towns 
and  the  population  of  the  rural  districts  through  the  instrumen- 
tality of  Schulzen  and  Burggrafen,  officers  having  substantially 
the  same  position  and  functions  as  we  have  seen  the  French 


274 


THE  GOVERNMENTS  OF  GERMANY. 


baillis  and  prevots  exercising  (sec.  297).  The  Schulze  was  a 
rural  officer.  He  was  the  intermediary  between  the  peasants 
and  their  prince  or  their  landlord/''  receiving  the  rents  and 
taxes  and  acting  as  chief  constable  and  judge.  The  Burggraf, 
on  the  other  hand,  as  his  name  implies,  was  a  city  officer,  the 
direct  agent  of  the  Markgraf,  presiding  in  the  town  as  head  of 
the  civil  and  military  administration. 

443.  Subsequent  Development  in  Town  Government.  — 
This  system,  however,  proved  by  no  means  permanent.  The 
Burggrafen  eventually  disappeared.  Municipal  councils  were 
suffered  to  assume  the  chief  part  in  the  direction  of  civil  affairs, 
though  the  administration  of  justice  was  retained  in  the  hands 
of  a  city  Schulze,  and  the  civil  authority  of  the  Markgraf  was 
still  represented  by  an  officer  of  consideration,  known  as  the 
Vogt.  The  Vogt,  however,  though  substituted  for  the  Burg- 
graf as  civil  officer  of  the  central  government,  was  not  dis- 
tinctively a  city  official :  his  jurisdiction  probably  included  a 
more  or  less  extensive  district  of  which  the  town  was  only  the 
centre. 

444.  Xot  only  did  the  towns  gain  thus  much  of  autonomy ; 
they  also  obtained  representation  in  the  provincial  diets,  and 
were  permitted  to  assume  control,  by  purchase,  of  their  feudal 
contributions  to  the  purse  of  the  Markgraf,  under  the  vicious, 
but,  so  far  as  they  were  concerned,  fortunate  system  of  farming 
the  revenues. 

445.  Resulting  Units  of  Local  Government.  —  The  several  units 
of  local  government  tlius  developed  were,  cities,  royal  domains,  manors, 
and  rural  communes.  Such  were  the  materials  out  of  which  the 
afterwards  compacted  administration  of  the  monarchy  was  to  be  put 
together, 

446.  Process  of  Centralization.  — Tlie  Great  Elector,  as  we 
have  seen  (sec,  391),  reduced  the  Estates  of  the  ^Lark  to  com- 
plete subjection  to  his  will.  He  it  was,  also,  who  began  the 
policy  by  which  local  affairs  as  well  were  to  be  centralized. 
In  the  towns  the  process  was  simple  enough.    The  difficulties 


THE  GOVERNMENTS  OP  GERMANY. 


275 


of  centralization  were  everywhere  measured  by  the  openness 
or  the  obstructions  of  the  channels  through  which  the  authority 
of  the  Elector  was  to  reach  the  lower  local  instrumentalities  of 
government.  In  the  towns  there  was  little  effective  obstruc- 
tion :  the  channels  were  already  open.  There  the  military 
authorities,  directly  representative  of  the  Elector,  had  all  along 
dictated  in  police  and  kindred  matters  ;  direct  ordinances  of 
the  Elector,  moreover,  regulated  taxation  and  the  finances,  and 
even  modified  municipal  privileges  at  pleasure.  It  did  not 
take  long,  such  being  the  system  already  established,  to  make 
burgomasters  creatures  of  the  royal  will,  or  to  put  effective 
restrictions  upon  municipal  functions. 

447.  In  the  provinces,  however,  it  was  quite  another  matter 
to  crush  out  local  privilege.  The  Prussia  of  the  Great  Elector 
and  his  successors  was  no  longer  the  Mark  Brandenburg,  but 
the  extended  Prussia  of  conquest.  There  were  many  Estates 
to  deal  with  in  the  several  principalities  of  the  kingdom ;  and 
these  Estates,  exercising  long-established  prerogatives,  very 
stubbornly  contested  every  step  with  the  central  power.  They 
were  the  channels  through  which  the  sovereign's  will  had  at 
first  to  operate  upon  provincial  government,  and  they  were  by 
no  means  open  channels.  They  insisted,  for  a  long  time  with 
considerable  success,  that  the  chief  officers  of  the  provinces 
should  be  nominated  by  themselves  ;  and  they  nominated  na- 
tives, men  of  their  own  number.  Only  by  slow  and  insidious 
processes  did  the  Elector,  or  his  successors  the  kings  of  Prus- 
sia, make  out  of  these  representative  provincial  officials  subser- 
vient royal  servants. 

448.  First  Results  of  Centralization.  — The  system  pursued 
in  these  processes  of  centralization,  so  far  as  there  was  any 
system  in  them,  was  a  system  of  grafting  central  control  upon 
the  old  growths  of  local  government  derived  from  the  Middle 
Ages.  The  result  was  of  course  full  of  complexities  and  com- 
promises. In  the  vast  royal  domains  bailiffs  administered  jus- 
tice and  police,  as  did  Schulzen  in  the  manorial  villages.  In 


276  THE  GOVERKMEKTS  OF  GERMANY. 

the  larger  rural  areas  a  Landrath,  or  sheriff,  "nominated  by 
the  county  nobility,  usually  from  among  their  own  number, 
and  appointed  by  the  king,"  saw  to  the  preservation  of  order, 
to  the  raising  of  the  levies,  to  tax  collection,  and  to  purvey- 
ance. In  the  towns  there  was  a  double  administration.  Magis- 
trates of  the  towns'  own  choosing  retained  certain  narrow  local 
powers,  constantly  subject  to  be  interfered  with  by  the  central 
authority ;  but  royal  tax-commissioners,  charged  with  excise 
and  police,  were  the  real  rulers.  Above  this  local  organiza- 
tion, as  an  organ  of  superintendence,  there  was  in  each  prov- 
ince a  '  Chamber  for  War  and  Domains,'  which  supervised  alike 
the  Landrath  and  the  city  tax-commissioners. 

A  War  and  Domains  Chamber  consisted  of  a  president,  a  **  director 
or  vice-president,  and  a  number  of  councillors  proportioned  to  the  size, 
populousness,  or  wealth  of  the  province."  The  president  of  a  chamber 
was  "  expected  to  make  periodical  tours  of  inspection  throughout  the 
province,  as  the  Landraths  did  throughout  their  counties."  In  the 
despatch  of  business  by  a  Chamber,  the  councillors  were  assigned 
special  districts,  special  kinds  of  revenue,  or  particular  public  improve- 
ments for  their  superintendence  or  administration,  the  whole  board 
supervising,  auditing,  etc.i 

449.  Justice  and  Finance.  —  Much  progress  towards  cen- 
tralization was  also  made  by  the  organization  of  justice  and 
finance.  "  The  administration  of  justice  was  in  the  hands  of 
boards,  the  Regiemngen,  or  governments,  on  the  one  hand  [the 
whole  organization  of  administration  in  Prussia  being  charac- 
teristically collegiate],  and  the  courts  on  the  other." 

In  finance  also  there  was  promise  of  complete  systematiza- 
tion.  During  the  period  preceding  the  Napoleonic  wars,  when 
Prussia  figured  as  a  purely  military  state,  the  chief  concern  of 
the  central  government  was  the  maintenance  and  development 
of  the  army.  The  chief  source  of  revenue  w^as  the  royal  do- 
mains :  the  chief  need  for  revenue  arose  out  of  the  under- 


1  Tuttle,  History  of  Prussia,  Vol.  III.,  pp.  107-109. 


THE  GOVERNMENTS  OF  GERMANY. 


277 


takings  of  war.^  There  were,  therefore,  at  the  seat  of  govern- 
ment two  specially  prominent  departments  of  administration, 
the  one  known  as  the  ^  General  War  Commissariat,'  and  having 
charge  of  the  army,  the  other  known  as  the  '  General  Finance 
Directory,'  and  commissioned  to  get  the  best  possible  returns 
from  the  domains  ;  and  here  and  there  throughout  the  prov- 
inces there  were  ^  War  Commissariats '  and  '  Domains  Cham- 
bers '  which  were  the  local  branches  of  the  two  great  central 
departments.^  These  two  departments  and  their  provincial 
ramifications  were,  however,  instead  of  being  co-ordinated,  kept 
quite  distinct  from  each  other,  clashing  and  interfering  in  their 
activities  rather  than  co-operating. 

450.  Fusion  of  Departments  of  War  and  Domains.  —  Such 
at  least  was  the  system  under  the  Great  Elector  and  his  imme- 
diate successor,  Frederic  I.,  if  system  that  can  be  called  which 
was  without  either  unity  or  coherence.  Frederic  William  I. 
united  War  and  Domains  under  a  single  central  board,  to  be 
known  as  the  '  General  Supreme  Financial  Directory  for  War 
and  Domains,'  and  brought  the  local  war  and  domains  boards 
together  in  the  provinces  as  Chambers  for  War  and  Domains. 
Under  this  arrangement  the  various  '  war  councillors '  who 
served  the  provincial  Chambers  were  charged  with  a  miscel- 
lany of  functions.  Besides  the  duties  which  they  exercised  in 
immediate  connection  with  military  administration,  they  were 
excise  and  police  commissioners,  and  exercised  in  the  cities 
many  of  the  civil  functions  which  had  formerly  belonged  to 
other  direct  representatives  of  the  crown.  In  the  rural  dis- 
tricts the  Chambers  were  served  in  civil  matters  by  the  several 
Landfdtlie. 

451.  Differentiation  of  Central  Bureaux.  —  This  arrange- 
ment speedily  proved  as  cumbrous  as  the  name  of  its  central 
organ,  and  an  internal  differentiation  set  in.     The  General 

1  The  army  consumed  about  five-sevenths  of  the  entire  revenue. 

2  Seeley,  Life  and  Times  of  Stein,  Vol.  I.,  Chap.  II.  Also  Tuttle,  Vol.  L, 
pp.  421,  422. 


278 


THE  GOVERNMENTS  OF  GERMANY. 


Directory  separated  into  Committees ;  and,  as  time  went  on, 
these  committees  began  to  assume  the  character  of  distinct 
Ministries  — though  upon  a  very  haphazard  system.  The  work 
was  divided  partly  upon  a  territorial  basis,  there  being  central 
bureaux  for  certain  provinces  of  the  state,  and  partly  upon  a 
logical  basis,  there  being  central  bureaux  for  certain  classes  of 
the  public  business,  irrespective  of  territorial  divisions.  Fred- 
eric the  Great  further  confused  the  system  by  creating  spe- 
cial departments  immediately  dependent  upon  himself  and  a 
special  cabinet  of  advisers  having  no  connection  with  the  Gen- 
eral Directory.  He  was  himself  the  only  cohesive  element  in 
the  administration:  it  held  together  because  clasped  entire 
within  his  hand. 

452.  Reforms  of  Stein  and  Hardenberg.  —  Order  was  at 
last  introduced  into  the  system  through  the  influence  of  Baron 
vom  Stein  and  the  executive  capacity  of  Count  Hardenberg, 
the  two  most  eminent  ministers  of  Frederic  William  III.,  who 
together  may  be  said  to  have  created  the  present  central  admin- 
istration of  Prussia.  Prussia  owes  to  the  genius  of  Stein, 
indeed,  the  main  features  of  both  her  central  and  her  local 
©rganization.  Her  central  organization  is  largely  the  direct 
work  of  his  hands  ;  and  her  local  organization  derives  its  prin- 
ciples from  his  thought  not  only,  but  also  from  the  provisions 
of  the  great  Ordinance  by  which  he  reconstructed  the  adminis- 
tration of  the  towns. 

453.  Prussian  administrative  arrangements  as  they  now  exist  may 
be  said  to  be  in  large  part  student-made.  As  the  Roman  emperors  hon- 
ored the  scientific  jurists  of  the  Empire  by  calling  upon  them  to  preside 
over  legal  development,  so  have  Prussian  kings  more  and  more  inclined 
to  rely  upon  the  advice  of  cultured  students  of  institutions  in  the 
organic  development  of  the  government.  Stein  was  above  all  things 
else  a  student  of  governments.  In  our  own  day  the  influence  of  Profes- 
sor Gneist  upon  administrative  evolution  has  continued  the  excellent 
tradition  of  student  power.  And  because  she  has  thus  trusted  her 
students,  Prussia  has  had  practical  students  :  students  whose  advice 
has  been  conservative  and  carefully  observant  of  historical  conditions. 


THE  GOVERNMENTS  OF  GERMANY. 


279 


Of  course  it  is  much  easier  to  give  such  influence  to  students  where 
the  government  follows  for  the  most  part  royal  or  executive  initiative 
than  where  all  initiative  rests  with  a  popular  chamber.  It  is  easier  to 
get  and  to  keep  the  ear  of  one  master  than  the  ears  of  five  hundred. 

454.  Reform  of  Local  Government  before  1872. — The 

county  law  (Kreisordnung)  of  the  13  December,  1872,  has 
been  called  the  Magna  Charta  of  Prussian  local  government. 
Upon  it  all  later  changes  and  modifications  rest.  Between  the 
period  of  Stein's  reforms  and  the  legislation  of  1872  the 
organization  of  local  government  was  substantially  as  follows  :  ^ 
The  provinces  were  divided  into  ^Government  Districts,'  as 
now,  the  Government  Districts  into  '  Circles  '  or  Counties.  An 
administrative  Board  established  in  the  Government  District 
was  then,  as  now,  the  vital  organ  of  local  administration.  In 
the  province  there  was  also  a  board,  exercising  general  super- 
visory powers,  the  eye  of  the  central  bureaux  in  the  larger 
affairs  of  administration,  the  affairs,  that  is,  extending  beyond 
the  area  of  a  single  Government  District;  and,  as  the  chief 
officer  of  the  province,  a  *  Superior  President'  of  influential 
position  and  function.  But  alongside  of  this  quite  modern 
machinery  stood  the  old  provincial  Estates  (revived  in  1853), 
representing,  not  the  people,  but  the  social  orders  of  a  by-gone 
age,  and  possessing  certain  shadowy  powers  of  giving  advice. 
In  the  'Circle'  or  County,  there  was  still  the  Lanclrath,  as 
formerly,  appointed  from  a  list  of  local  landed  proprietors,  and 
associated  with  the  '  Estates  of  the  Circle,'  a  body  composed 
of  the  county  squires  and  a  few  elected  representatives  from 
the  towns  and  the  rural  townships,  —  a  body  of  antiquated 
pattern  recalled  to  life,  like  the  Estates  of  the  province,  in 
1853.  In  the  towns,  which  had  directly  received  the  imprint 
of  Stein's  reforming  energy  and  sagacity,  administration  was 
conducted  by  boards  of  magistrates  chosen  by  popular  councils 
and  associated  with  those  councils  in  all  executive  business  by 

1  See  R.  B.  D.  Morier's  essay  on  Local  Government  in  Germany,  in  the 
volume  of  Cobden  Club  Essai/s  for  1875. 


280 


THE  GOVERNMENTS  OF  GERMANY. 


means  of  a  joint-committee  organization,  the  burgomasters 
being  presidents  rather  than  chief  magistrates. 

455.  Landgemeinde  and  Manors.  —  Besides  these  areas  of  admin- 
istration there  were  rural  communes  {Landgemeinde)  still  connected, 
quite  after  the  feudal  fashion,  with  adjacent  or  circumjacent  manors, 
their  government  vested  in  a  Schulze  and  two  or  more  SchiJffen  (sheriffs 
or  justices),  the  former  being  appointed  either  by  the  lord  of  the  manor, 
or,  if  the  village  was  a  free  village,  as  sometimes  happened,  by  the 
owner  of  some  ancient  freehold  within  the  commune  with  which  mano- 
rial rights  had  somehow  passed.  The  commune  had,  besides,  either  a 
primary  or  an  elective  assembly.  The  communes  were  often  allowed, 
under  the  supervision  of  the  oflScial  board  of  the  Government  District, 
to  draw  up  charters  for  themselves,  embodying  their  particular  local 
laws  and  privileges. 

Within  the  manors  police  powers,  poor-relief,  the  maintenance  of 
roads,  etc.,  rested  with  the  proprietor.  Local  government  was  within 
their  borders  private  government. 

456.  Reform  of  1872. — The  legislation  of  1872  took  the 
final  steps  towards  getting  rid  of  such  pieces  as  remained  of 
the  antiquated  system.  It  abolished  the  hereditary  jurisdic- 
tion of  the  manor  and  the  dependent  office  of  Schulze,  and 
established  in  place  of  the  feudal  status  an  equal  citizenship  of 
residence.  In  place  of  the  Estates  of  the  province  and  county 
it  put  real  representative  bodies.  It  retained  the  Lcuiclrath, 
but  somewhat  curtailed  his  powers  in  the  smaller  areas  within 
the  Circle,  and  associated  with  him  an  effective  administrative 
board,  of  which  he  became  little  more  than  president.  It  car- 
ried out  more  thoroughly  than  before  in  the  various  areas  the 
principle  of  board  direction,  integrating  the  lesser  with  the 
greater  boards,  and  thus  giving  to  the  smaller  areas  organic 
connection  with  the  larger.  It  reformed  also  the  system  of 
local  taxation.  It  is  upon  this  legislation,  as  I  have  said,  that 
the  system  of  local  government  now  obtaining  in  Prussia  is 
erected  ^  (sees.  471-493). 


1  Morier,  p.  434. 


THE  GOVERNMENTS  OF  GERMANY. 


281 


457.  The  Central  Executive  Departments.  —  Stein's  scheme 
for  the  development  of  the  central  organs  of  administration 
brought  into  existence  five  distinct  ministries,  which  no  longer 
masqueraded  as  committees  of  a  cumbrous  General  Directory, 
and  whose  functions  were  distributed  entirely  upon  a  basis  of 
logical  distinction,  not  at  all  upon  any  additional  idea  of  terri- 
torial distribution.  These  were  a  Ministry  of  Foreign  Affairs, 
a  Ministry  of  the  Interior,  a  Ministry  of  Justice,  a  Ministry  of 
Finance,  and  a  Ministry  of  War.  This,  however,  proved  to 
be  by  no  means  a  final  differentiation.  The  Ministry  of  the 
Interior  was  at  first  given  a  too  miscellaneous  collection  of 
functions,  and  there  split  off  from  it  in  1817  a  Ministry  of 
Ecclesiastical,  Educational,  and  Sanitary  Affairs,  in  1848  a 
Ministry  of  Trade,  Commerce,  and  Public  Works  and  a  Min- 
istry of  Agriculture.  In  1878  a  still  further  differentiation 
took  place.  The  Ministry  of  Finance,  retaining  distinct  remi- 
niscences of  its  origin  in  the  administration  of  the  royal 
domains,  had  hitherto  maintained  a  Department  for  Domains 
and  Forests.  That  department  was  in  1878  transferred  to  the 
Ministry  of  Agriculture.  At  the  same  time  the  Ministry  of 
Trade,  Commerce,  and  Public  Works  was  divided  into  two,  a 
Ministry  of  Trade  and  Commerce  and  a  Ministry  of  Public 
Works. 

There  are  now,  therefore,  nine  ministries :  (1)  a  Ministry  of  Foreign 
Affairs  (Stein,  1808) ;  (2)  a  Ministry  of  the  Interior  (1808) ;  (3)  a 
Ministry  of  Ecclesiastical,  Educational,  and  Sanitary  Affairs  (1817)  ; 
(4)  a  Ministry  of  Trade  and  Commerce  (1848)  ;  (5)  a  Ministry  of  Agri- 
culture (1848),  Domains,  and  Forests  (1878)  ;  (6)  a  Ministry  of  Public 
Works  (1878)  ;  (7)  a  Ministry  of  Justice  (1808)  ;  (8)  a  Ministry  of 
Finance  (1808)  ;  and  (9)  a  Ministry  of  War  (1808). 

458.  The  Council  of  State.  — Most  of  these  ministries  were 
created  before  Prussia  had  any  effective  parliamentary  system, 
and  when,  consequently,  there  was  no  instrumentality  in  ex- 
istence through  which  there  could  be  exercised  any  legislative 
control  of  the  executive.    Stein  would  have  revived  for  the 


282 


THE  GOVERNMENTS  OF  GERMANY. 


exercise  of  some  such  function  tlie  ancient  Council  of  State 
(Staatsrath)  founded  by  Joachim  Friedrich  in  1604,  which  had 
at  first  presided  over  all  administration  but  whose  prerogatives 
of  oversight  and  control  had  gradually  decayed  and  disappeared. 
This  council,  which  bears  a  general  family  resemblance  to  the 
English  Privy  Council  (sec.  672),  had  a  mixed  membership 
made  up  in  part  of  princes  of  the  blood  royal,  in  part  of  cer- 
tain civil,  military,  and  judicial  ofiicials  serving  ex  officio,  and 
in  part  of  state  officials  specially  and  occasionally  summoned. 
It  was  Stein's  purpose  to  rehabilitate  this  body,  which  was  in 
a  sense  representative  of  the  classes  standing  nearest  to  gov- 
ernment and,  therefore,  presumably  best  qualified  to  test 
methods,  and  to  set  it  to  oversee  the  work  of  the  ministers :  to 
serve  as  a  frame  of  unity  in  the  administration  without  with- 
drawing from  the  ministers  their  separate  responsibility  and 
freedom  of  movement.  This  part  of  his  plan  was  not,  however, 
carried  out,  and  the  Council  of  State,  though  still  existing,  a 
shadow  of  its  former  self,  has  never  fully  regained  its  one- 
time prominence  in  administration. 

459.  Between  1817  and  1848  the  Council  of  State  exercised  certain 
important  functions  :  it  considered  proposed  laws  and  ordinances,  passed 
upon  contests  as  to  jurisdiction  arising  between  the  several  executive 
departments,  heard  complaints  against  decisions  of  ministries,  and  ful- 
filled other  uses  as  a  consultative  council.  Between  1848  and  1852  its 
meetings  were  infrequent  and  only  at  the  king's  pleasure,  its  powers 
passing  into  the  hands  of  a  committee  of  its  members  selected  by  the 
king,  just  as  the  powers  of  the  English  Privy  Council  passed  to  the 
Cabinet  (sec.  674).  Since  1852  it  has  been  partially,  but  only  partially, 
recalled  to  life. 

460.  The  Staatsministerium.  —  Instead  of  adopting  Stein's 
plan.  Count  Hardenberg  integrated  the  several  ministries  by 
establishing  the  Ministry  of  State,  or  College  of  Ministers 
{Staatsministerium),  which  stands  in  much  the  same  relation 
to  Prussian  administration  that  the  French  Council  of  Minis- 
ters (sec.  325)  occupies  towards  administration  in  France, 


THE  GOVERNMENTS  OF  GERMANY. 


283 


though  it  ill  some  respects  resembles  also  the  French  Council 
of  State  (sec.  353) .  It  is  composed  of  the  heads  of  the  several 
ministries  and  meets,  once  a  week  or  oftener,  for  the  considera- 
tion of  all  matters  which  concern  all  the  executive  depart- 
ments alike,  to  discuss  proposed  general  laws  or  constitutional 
amendments,  to  adjust  conflicts  between  departments,  to  hear 
reports  from  the  ministers  as  to  their  policy  in  the  prosecution 
of  their  separate  work,  to  exercise  a  certain  oversight  over 
local  administration,  to  concert  measures  to  meet  any  civil 
exigency  that  may  arise,  etc.  It  serves  to  give  unity  and 
coherence  to  administration. 

461.  The  Supreme  Chamber  of  Accounts.  —  The  same  pur- 
pose is  served  by  the  Supreme  Chamber  of  Accounts  {Ober- 
reclinungskammer)  and  by  the  Economic  Council  ( Volksivirth- 
schaftsrath) .  The  Supreme  Chamber  of  Accounts  was  founded 
in  1714  by  Frederic  William  L  Its  members  have  the  tenure 
and  responsibility  of  judges.  Its  president  is  appointed  by 
the  crown  on  the  nomination  of  the  Ministry  of  State  ;  its 
other  members  are  appointed  by  the  crown  upon  the  nomina- 
tion of  its  president,  countersigned  by  the  president  of  the 
Ministry  of  State.  It  constitutes  a  distinct  branch  of  the 
government,  being  subordinate,  not  to  the  Ministry  of  State, 
but  directly  responsible  to  the  crown.  Its  duty  is  the  careful 
oversight  and  revision  of  the  accounts  of  income  and  expendi- 
ture from  all  departments ;  the  oversight  of  the  state  debt  and 
of  the  acquisition  and  disposition  of  proi)erty  by  the  state.  It 
watches,  in  brief,  the  detailed  administration  of  the  finances, 
and  is  the  judicial  guardian  of  the  laws  concerning  revenue 
and  disbursement. 

462.  The  Economic  Council.  —  The  Economic  Council  con- 
siders proposals  for  laws  or  ordinances  aifecting  weighty 
economic  interests  which  fall  within  the  domains  of  the  three 
ministries  of  Trade  and  Commerce,  of  Public  Works,  and  of 
Agriculture.  Such  proposals,  as  well  as  the  proposals  for  the 
repeal  of  such  laws  and  ordinances,  are  submitted  to  its  debate 


284:  THE  GOVERNMENTS  OF  GERMANY. 


before  going  to  the  king  for  his  approval.  It  is  also  privileged 
to  consider  the  question  how  Prussia's  votes  shall  be  cast  upon 
such  matters  in  the  Bundesrath.  Of  course,  however,  its  part 
in  affairs  is  merely  consultative.  It  is  composed  of  seventy- 
five  members  appointed  by  the  king  for  a  term  of  five  years, 
forty-five  of  this  number  being  appointed  upon  the  nomination 
of  various  chambers  of  commerce,  mercantile  corporations,  and 
agricultural  unions. 

463.  The  Ministries  of  War  and  of  Foreign  Affairs  are  practically, 
not  Prussian,  but  imperial  (sec.  427). 

464.  The  Ministers  in  the  Legislature.  —  The  king  —  or, 
more  properly,  the  Administration,  —  is  represented  in  the 
legislative  houses  by  the  ministers,  who  need  not  be  members 
in  order  to  attend  and  speak  on  the  public  business. 

465.  The  Landtag:  the  House  of  Lords. — The  Prussian 
Landtag,  or  Legislature,  consists  of  two  houses,  a  House  of 
Lords  (Herrenhaus)  and  a  House  of  Pepresentatives  (Abgeord- 
netenhaus).  The  House  of  Lords  might  better  be  described  as 
a  house  of  classes.  It  contains  not  only  hereditary  members 
who  represent  rights  of  blood,  but  also  life  members  who  rep- 
resent landed  properties  and  great  institutions,  and  officials  who 
represent  the  civil  hierarchy.  There  sit  in  it  princes  of  the 
blood  royal  nominated  to  membership  by  the  king ;  the  heads  of 
the  houses  of  HohenzoUern-Hechingen  and  HohenzoUern-Sigma- 
ringen  and  of  eighteen  houses  once  sovereign  whose  domains 
have  been  swallowed  up  by  Prussia;  certain  noblemen  ap- 
pointed by  the  crown ;  the  four  chief  officials  of  the  province 
of  Prussia  (the  Supreme  Burggraf,  the  High  Marshal,  the 
Grand  Master  of  the  Teutonic  Order,  and  the  Chancellor) ; 
and  a  great  number  of  representatives  appointed  by  the  king 
upon  the  presentation  of  various  bodies :  certain  evangelical 
foundations,  namely,  certain  colleges  of  counts,  and  of  land- 
holders of  great  and  ancient  possession,  the  nine  universities, 
and  the  forty-three  cities  which  have  received  the  right  of 


THE  GOVER^STMENTS  OF  GERMANY. 


285 


nomination.  The  king  may,  besides,  issue  special  summons 
to  sit  in  the  House  of  Lords  to  such  persons  as  he  thinks 
worthy.  There  is  no  limit  placed  upon  the  number  of  mem- 
bers,—  the  only  restriction  concerns  age;  members  must  be 
at  least  thirty  years  old. 

466.  The  House  of  Representatives,  though  in  a  sense 
representing  every  Prussian  twenty -five  years  of  age  who  is 
not  specially  disqualified  to  vote,  is  not  constituted  by  a  direct 
popular  franchise,  or  even  by  an  equal  suffrage.  The  vote  is 
indirect  and  is  proportioned  to  taxable  property.  The  country 
is  divided  into  districts ;  the  qualified  voters  of  each  district 
are  divided  into  three  classes  in  such  a  way  that  each  class 
shall  represent  one-third  of  the  taxable  property  of  the  dis- 
trict ;  each  of  these  classes  selects  by  vote  a  third  of  the  number 
of  electors  to  which  the  district  is  entitled ;  and  the  electors 
so  chosen  elect  the  members  of  the  House  of  Representatives. 

467.  The  Electoral  System.  —  One  elector  is  chosen  for  every  two 
hundred  and  fifty  inhabitants ;  the  voting  is  not  by  the  ballot,  but  is 
public,  and  an  absolute  majority  of  the  electors  is  required  to  elect. 
The  total  number  of  members  of  the  House  is  432.  The  term  is  five 
years.  Any  Prussian  who  is  thirty  years  of  age  and  in  full  possession 
of  civil  rights  may  be  chosen. 

468.  It  need  hardly  to  be  remarked  that  the  division  of  the  primary 
voters  into  classes  according  to  the  amount  of  taxes  they  pay  gives  a 
preponderance  to  wealth.  The  three  classes  are  of  course  very  unequal 
in  numbers.  It  requires  a  comparatively  small  number  of  rich  men  to 
represent  one-third  of  the  taxable  property  in  a  district ;  it  takes  a  con- 
siderably larger  number  of  the  well-to-do  to  represent  another  third ; 
and  the  last  third  will  be  represented  by  the  great  majority  of  the  in- 
habitants of  the  district.  For  the  classes  are  not  constituted  with  a  view 
to  distributing  the  small  tax-payers  and  equalizing  the  classes  numeri- 
cally. Those  who  pay  most  taxes  constitute  the  first  class;  those  who 
pay  less,  the  second;  those  who  pay  least  or  none,  the  third;  and  it 
may  very  well  happen  that  a  very  small  number  of  persons  elects  thus 
a  third  of  the  electors. 

469.  Equality  and  Competence  of  the  Houses.  —  The 

consent  of  both  Houses  is  necessary,  of  course,  to  the  passage 


286 


THE  GOVERNIVIENTS  OF  GER^^IANY. 


of  a  law,  and  they  stand  upon  a  perfect  equality  as  re- 
gards also  the  right  of  initiative  in  legislation,  —  except  that 
all  financial  measures  must  originate  in  the  lower  house, 
and  that  the  upper  house  can  pass  upon  the  budget,  which 
must  be  presented  first  to  the  House  of  Kepresentatives,  only 
as  a  whole.  The  Lords  cannot  amend  the  budget  in  part 
when  it  comes  up  to  them:  they  must  accept  or  reject  it 
entire. 

470.  The  King's  Power  of  Adjournment  and  Dissolution.— 

The  king  may  adjourn  the  House  of  Representatives  for  a  period  not 
exceeding  thirty  days,  once  during  any  one  session  without  its  consent. 
He  may  also  dissolve  it.  When  a  dissolution  is  resorted  to  he  must 
order  a  new  election  within  sixty  days,  and  the  newly  elected  House 
must  assemble  within  ninety  days.    (Compare  sec.  315,  319.) 

471.  Local  Government. — The  organization  of  local  gov- 
ernment in  Prussia  is  rendered  complex  by  a  mixture  of  his- 
torical and  systematic  elements :  it  is  compounded  of  old  and 
new,  —  of  the  creations  of  history  and  the  creations  of  Stein. 
For  Stein's  hand  is  even  more  visible  in  local  organization  in 
Prussia  than  in  the  organization  of  the  central  ministries. 
More  conservative  than  the  Constituent  Assembly  and  Napo- 
leon in  France,  he  did  not  sweep  away  the  old  provinces  of 
Prussia,  whose  boundaries,  like  those  of  the  French  provinces 
of  the  old  regime,  were  set  deep  in  historical  associations.  The 
twelve  provinces  were  given  a  place  —  a  function  of  superin- 
tendence —  in  the  new  system  established.  The  country  was 
divided  into  Districts  (Bezirke)  corresponding  in  general  char- 
acter and  purpose  with  the  French  Departments;  but  these 
Districts  were  grouped  under  a  superintendent  provincial  or- 
ganization. There  are,  therefore,  in  Prussian  local  organiza- 
tion (1)  the  Province,  then  (2)  the  Government  District,  then 
(3)  the  Circle  {Kreis)  or  County,  and  last  (4)  the  township 
and  the  town.  The  township  and  the  town  are,  as  we  shall 
see,  co-ordinate,  standing,  not  in  subordination  to  each  other, 
but  in  the  same  rank  of  the  series. 


THE  GOVERNMENTS  OF  GERMANY. 


287 


472.  The  usual  organs  of  local  government  throughout  all  the  series 
of  the  Prussian  system  are  "  first,  a  representative  body  with  an  exclu- 
sive control  over  the  economic  portion  of  the  communal  business ;  sec- 
ondly, an  executive  board  with  an  exclusive  control  over  the  public 
portion  of  the  communal  business ;  thirdly,  mixed  committees,  com- 
posed of  members  of  both  bodies,  for  the  ordinary  management  of  the 
affairs  of  the  community ;  fourthly,  the  division  of  the  communal  area 
into  administrative  districts  under  overseers  responsible  to  the  execu- 
tive board."  i 

473.  The  Province.  — There  are  in  the  Province  two  sets  of 
governmental  organs  :  one  of  which  represents  the  state  and  its 
oversight,  the  other  the  Province  and  its  self-government.  (1) 
The  state  is  represented  by  a  Superior  President  and  a  Provin- 
zialrath  associated  with  him.  Stein's  purpose  in  retaining  the 
provincial  organization  was  to  secure  broad  views  of  adminis- 
tration through  ofiB.cials  charged  with  the  oversight  of  extended 
areas  and  so  elevated  above  the  near-sightedness  of  local  routine 
and  detail.  Nearer  to  the  particulars  of  local  administration 
than  the  ministers  at  Berlin,  but  not  so  near  as  the  officials  of 
the  Government  Districts,  the  provincial  representatives  of  the 
state  are  charged  with  the  care  "  of  all  such  affairs  as  concern 
the  entire  province  or  stretch  beyond  the  jurisdiction  of  a 
single  [district]  administration."^  These  are  such  matters 
as  affect  imperial  interests  or  the  whole  Prussian  state ;  the 
concerns  of  public  institutions  whose  functions  extend  beyond 
a  District ;  insurance  companies ;  extensive  plans  of  improve- 
ment ;  road  and  school  management,  etc.  In  exercising  most 
of  these  functions  the  provincial  authorities  act,  however,  not 
through  officers  of  their  own,  but  through  the  District  Admin- 
istrations. There  lies  with  the  Superior  President,  also,  the 
duty  of  overseeing  district  administration,  the  provincial  tax 
directors,  and  the  general  Commission  for  the  regulation  of 

^  R.  B.  D.  Morier,  Cohden  Club  Essays  (1875)  on  Local  Government  and 
Taxation,  p.  433. 

2  Schulze,  Das  Staatsrecht  des  Konigreichs  Preiissen  (in  Marquardsen's 
EandbucK),  p.  63. 


288  THE  GOVERNMENTS  OF  GER^IANY. 


the  relations  between  landlords  and  tenants.  He  represents 
the  central  government,  also,  in  all  special,  occasional  duties, 
and  under  all  extraordinary  circumstances.  He  has,  too,  ini- 
tial jurisdiction  in  cases  of  conflict  between  District  Adminis- 
trations, or  between  such  Administrations  and  specially  com- 
missioned officials  not  subject  to  their  orders. 

The  extraordinary  powers  of  the  'Superior  President'  are  illus- 
trated by  the  fact  that,  in  case  of  serious  civil  disturbance,  of  war  or 
the  danger  of  war,  he  is  authorized  to  assume  the  whole  authority  of 
administration,  local  as  well  as  general,  within  the  Province. 

In  overseeing  the  District  Administration,  however,  he  has  no  execu- 
tive, but  only  advisory  powers.  He  is  the  eye  of  the  Ministries  at 
Berlin,  advising  them  of  all  matters  needing  their  action.  Like  the 
French  Prefect,  he  is  the  servant  of  all  Ministries  alike,  though  most 
directly  and  intimately  associated  with  the  Ministry  of  the  Interior. 

474.  The  defect  of  the  provincial  organization  in  Prussia  is  said  to 
be  lack  of  vitality.  Critics  like  Professor  Gneist  think  that  it  renders 
the  system  of  local  government  cumbrous  without  adding  to  its  efficacy. 
It  is  too  much  restricted  to  gratuitous  advice,  and  too  little  authorized 
to  take  authoritative  action. 

475.  The  Provinzialrath,  the  Council  associated  with  the  Su- 
perior President,  consists,  besides  the  President  or  his  repre- 
sentative as  presiding  officer,  of  some  high  administrative  official 
appointed  by  the  Minister  of  the  Interior  and  of  five  members 
chosen  by  the  Provincial  Committee  for  a  term  of  six  years. 

476.  (2)  The  organs  representing  the  Province  and  its  self- 
government  are  the  Provincial  Landtag,  the  Provincial  Com- 
mittee, and  the  Landeshauptmann  or  Landesdirektor.  In  a 
Prussian  law  concerning  local  government  the  province  is  de- 
scribed as  "  a  communal  union  established  with  the  rights  of 
a  corporation  for  self-government  of  its  own  affairs."  ^  The 
provincial  legislative  body,  the  Landtag,  is  composed  of  repre- 
sentatives elected  from  the  Circles  or  Counties  by  the  diets  of 
the  Circles  :  for,  when  looked  at  from  the  point  of  view  of  self- 

1  Schulze,  Das  Staatsreckt  des  Kom'greichs  Preiissen  (in  Marquardsen's 
Handbuch),  p.  85. 


THE  GOVERNMENTS  OF  GERMANY. 


289 


government,  the  Province  is  a  union  of  Circles,  not  of  Dis- 
tricts :  the  Districts  are  organs  of  the  central  government  only. 
The  functions  of  the  Landtag  lie  within  the  narrow  held  of 
such  matters  as  the  apportionment  of  taxes  among  the  Circles 
(which  in  their  turn  apportion  them  among  individuals),  the 
examination  of  the  local  budget,  the  care  of  provincial  prop- 
erty, and  the  election  of  certain  officials. 

It  also,  on  occasion,  gives  its  opinion  on  bills  concerning  the  Province 
and  on  other  matters  referred  to  it,  for  an  expression  of  opinion,  by  the 
authorities  at  Berlin. 

477.  The  Landtag  elects  the  Provincial  Committee  and  the 
Landeshauptmann,  who  are  the  executive  organs  of  provincial 
self-government.  The  Landeshauptmann  and  the  Committee 
stand  related  to  each  other  very  much  as  do  the  Superior 
President  and  Provmzialrath,  Prefect  and  Prefectural  Council : 
the  Landeshauptmann  is  the  executive,  the  Committee  the  con- 
sultative organ  of  local  self-administration. 

478.  The  spheres  of  the  representatives  of  the  state  and  of  the  repre- 
sentatives of  local  self-government  are  quite  sharply  distinguished  in 
Prussia.  The  Provincial  Committee  and  the  Landeshauptmann  have 
nothing  to  do  with  the  general  administration  :  that  is  altogether  in  the 
hands  of  the  Superior  President  and  the Provinzialrath,  who  on  their  part 
have  nothing  to  do  with  local  self-government.  The  sphere  of  local 
self-government,  though  very  narrow  indeed,  is  much  more  guarded 
against  the  constant  interference  of  the  central  authorities  in  Prussia 
than  in  France.    (Compare  sec.  346.) 

479.  Communal  Estates.  — In  some  Provinces  there  still  exist  cer- 
tain corporations,  representing  the  old  organization  by  'estates'  of  in- 
dependent districts,  which  retain  their  'landtag,'  their  separate  property, 
and  a  small  part  of  their  privileges.  They  constitute  rural  poor-unions, 
and  play  a  limited  part  in  local  administration  according  to  the  sharply 
explicit  laws  of  incorporation  under  which  they  now  exist.  They  are, 
however,  being  gradually  abolished  or  transformed  by  special  enact- 
ments. Their  German  name  is  Kommunal-standische  Verbdnde,  which 
may  be  translated.  Unions  of  Communal  Estates. 

480.  The  Government  District  (  Regierungsbezirk). — Un- 
like the  Province,  the  Government  District  has  no  organs  of 


290 


THE  GOVERNMENTS  OF  GERMANY. 


self-government :  it  is  exclusively  a  division  of  state  admin- 
istration. Its  functionaries  are  the  principal  —  it  may  even 
be  said  the  universal  —  agents  of  the  central  government  in 
the  detailed  conduct  of  administration  :  they  are  charged  with 
the  local  management  of  all  affairs  that  fall  within  the  sphere 
of  the  Ministries  of  the  Interior,  of  Finance,  of  Trade  and 
Commerce,  of  Public  Works,  of  Agriculture,  of  Ecclesiastical 
and  Educational  Affairs,  and  of  War,  exclusive,  of  course, 
of  such  matters  as  are  exceptionally  entrusted  to  officers 
specially  commissioned  for  the  purpose.  In  brief,  they  serve 
every  ministry  except  the  Ministry  of  Justice. 

481.  Collectively  the  functionaries  of  the  District  are  called 
the  ^Administration'  {Hegiening),  and  their  action  is  for  the 
most  part  collegiate,  i.e.,  through  Boards.  The  exception  to 
this  rule  concerns  matters  falling  within  the  province  of  the 
Ministry  of  the  Interior.  That  Ministry  acts  in  the  District, 
not  through  a  board  of  officials,  but  through  a  single  official, 
the  President  of  the  Administration  {Regierungsjprdsident). 
In  dealing  with  all  other  matters  the  action  is  collegiate  ;  but 
the  Boards  are  not  independent  bodies  :  they  are  divisions 
{Ahtlieilungen)  of  the  'Administration'  taken  as  a  whole,  and 
in  certain  affairs  of  general  superintendence  the  '  Administrar 
tion'  acts  as  a  single  council  {im  Plenum).  Each  Board  is 
presided  over  by  a  '  Superior  Administrative  Councillor ' 
(Oherregierungsratli)  ;  and  that  on  Domains  and  Forests  has 
associated  with  it  a  special  functionary  known  as  the  Forest- 
master.  The  members  of  the  '  Administration '  are  all  ap- 
pointed by  the  central  government,  which  places  upon  the 
Boards  whose  functions  require  for  their  proper  discharge  a 
special  training  certain  so-called  technical  members  "  :  for 
instance,  school  experts,  medical  experts,  road-engineers,  and 
technically  instructed  forest  commissioners. 

These  '  Administrations '  have  taken  the  places  of  the  old-time  War 
and  Domains  Chambers  of  which  I  have  spoken  (sec.  449),  and  which, 
like  the  Administrations,  acted  through  Boards  as  a  sort  of  universal 


THE  GOVERNMENTS  OF  GERMANY. 


291 


agency  for  all  departments  of  government.  It  is  only  since  1883  that 
the  affairs  of  the  Interior  have  been  given  into  the  sole  charge  of  the 
President  of  the  Administration.  Before  that  date  they  also  were  in  the 
hands  of  a  Board, 

482.  "  Every  head  of  a  department,  as  well  as  every  Rath  and  as- 
sessor, is  bound  each  year  to  make  a  tour  through  a  portion  of  tlie 
[Government]  district,  to  keep  an  official  journal  of  all  he  sees,  to  be 
afterwards  preserved  amongst  the  records  of  the  Board,  and  thus  to 
make  himself  practically  acquainted  with  the  daily  life  and  the  daily 
wants  of  the  governed  in  the  smallest  details."  i 

483.  The  President  of  the  Administration  is  the  most 
important  official  in  the  Prussian  local  service.  Not  only  does 
he  preside  over  the  Administration,  the  general  and  most  im- 
portant agency  of  local  government ;  he  is  also  equipped  for 
complete  dominance.  Shouldering  all  responsibility,  he  may 
annul  decisions  of  the  ^  Administration '  or  of  any  of  its  Boards 
with  which  he  does  not  agree,  and,  in  case  delay  seems  disad- 
vantageous, himself  command  necessary  measures.  He  may 
also,  if  he  will,  set  aside  the  rule  of  collegiate  action  and 
arrange  for  the  personal  responsibility  of  the  members  of  the 
'  Administration,'  whenever  he  considers  any  matter  too  press- 
ing to  await  the  meeting  and  conclusions  of  a  Board,  or,  if 
when  he  is  himself  present  where  action  is  needed,  he  regards 
such  an  arrangement  as  necessary.^  In  brief,  he  is  the  real 
governing  head  of  local  administration. 

484.  The  District  Committee. — Although,  as  I  have  said, 
the  Government  District  is  not  an  area  of  self-government,  a 
certain  part  in  the  oversight  of  government  action  in  the  Dis- 
trict is  given  to  representatives  of  the  provincial  agents  of  the 
people.  A  District  Committee  (Bezirksausschuss) ,  composed 
of  two  members  (one  of  whom  must  be  a  qualified  judge,  the 
other  a  qualified  member  of  a  high  grade  of  the  administrative 
service)  appointed  by  the  king  for  life,  and  of  four  members 

1  Morier  (Cobden  Club  Essays),  p.  422. 

2  Schulze  (in  Marquardsen),  p.  64. 


292 


THE  GOVERNMENTS  OF  GERMANY. 


chosen  by  the  Provincial  Committee  (sec.  477),  for  a  term  of 
six  years,  is  allowed  an  oversight  of  '  such  affairs  of  the  Dis- 
trict as  are  suitable  for  lay  participation  and  for  collegiate 
handling.'  It  is  constituted,  i.e.,  a  sort  of  eye  of  the  District 
in  state  concerns :  for,  though  indirectly  representative  of  the 
self-governing  body  of  the  Province,  the  District  Committee, 
like  all  other  District  authorities,  concerns  itself  with  state 
administration  exclusively.  Very  much  more  important  than 
its  administrative  functions  are  the  judicial  functions  with 
which  it  has  been  recently  invested.  Since  1883  the  District 
Committee  has  been  the  Administrative  Court  of  the  District 
(sec.  500). 

The  Government  Districts  number  twenty-eight,  and  are  grouped,  as 
I  have  said,  within  the  twelve  Provinces. 

485.  The  Circle  (Kreis) .  —  In  the  Circle,  as  in  the  Prov- 
ince, there  emerges  a  double  set  of  functions :  there  is  the 
state  administration  and,  alongside  of  it,  the  narrower  func- 
tions of  self-government.  The  Circles  are  considered  ^the 
chief  pillars  of  state  administration  and  of  communal  organi- 
zation.' This  double  set  of  functions  is  performed,  however, 
by  a  single  set  of  functionaries  :  by  the  County  Justice  {Land- 
rath)  and  the  Circle  Committee  (Kreisaitsschiiss)  as  executive, 
and  the  Diet  of  the  Circle  (Kreistag)  as  consultative  and  super- 
visory, authority.  There  are  not,  as  in  the  Province,  one 
council  and  one  executive  for  the  state,  another  council  and 
another  executive  for  the  locality. 

486.  The  Landrath  and  the  Circle  Committee.  —  The 
Landrath  stands  upon  a  peculiar  footing :  his  office  is  ancient 
and  retains  many  of  its  historical  features.  Originally  the 
Landrath  represented  the  landed  gentry  of  various  districts  of 
Brandenburg ;  he  was  appointed  upon  their  nomination  and  in 
a  sense  represented  their  interests.  In  some  parts  of  Prussia 
traces  of  this  right  of  presentation  to  the  office  by  the  land- 
owners still  remain ;  and  in  almost  all  parts  of  the  kingdom 


THE  GOVERNMENTS  OF  GERMANY. 


293 


the  privilege  of  nomination  has  been  transferred  to  the  Circle 
Diet,  as  heir  of  the  control  once  exercised  by  the  local  lords  of 
the  soil.  The  Landrath  is,  therefore,  formally,  the  represen- 
tative of  the  locality  in  which  he  officiates.  In  reality,  how- 
ever, he  is  predominantly  the  agent  of  the  state,  serving  both 
the  Administration  of  the  District  and  the  departments  at 
Berlin.  He  is  chief  of  police  within  the  Circle,  and,  within 
the  same  limits,  superintendent  of  all  public  affairs.  Associ- 
ated with  him  in  the  administration  of  his  office,  and  organized 
under  his  presidency,  is  the  Circle  Committee,  which  consists, 
besides  himself,  of  six  members  chosen  by  the  Circle  Diet. 
This  Committee  also  constitutes  the  Administrative  Court  of 
the  Circle  (sec.  500). 

487.  The  Diet  of  the  Circle  represents,  not  the  people, 
but  groups  of  interests,  —  it  is  based  upon  the  economical  and 
social  relations  of  the  people.  Each  Circle  includes  all  towns 
lying  within  it  which  have  less  than  25,000  inhabitants  and 
representation  in  the  Diet  is  divided  between  town  and  country. 
The  country  representation,  in  its  turn,  is  divided  between  the 
rural  Commune  and  the  greater  landowners. 

The  cities  elect  representatives  either  singly  or  in  groups :  if  singly, 
through  their  magistrates  and  councils  acting  together ;  if  in  groups, 
through  electors  who  assemble  under  the  presidency  of  the  Landrath. 
As  'greater  landowners'  are  classed  all  those  who  pay,  in  their  own 
right,  75  thalers  annual  land  or  building  tax ;  and  these  are  organized 
for  electoral  purposes  in  Unions  (Verbdnde).  The  rural  Communes 
elect  in  groups  through  electors.  The  term  of  members  of  the  Circle 
Diet  is  six  years.  Cities  having  more  than  25,000  inhabitants  constitute 
separate  Circles,  and  combine  in  their  town  governments  both  Circle  and 
Commune  under  the  forms  of  city  government. 

488.  The  Magisterial  District  {Amtshezirk) ,  —  The  rural 
Communes  are  grouped  into  some  five  thousand  six  hundred 
and  sixty-eight  Magisterial  Districts,  which  are  presided 
over  by  a  Keeve  {Amtsvorstelier) ,  nominated  by  the  Circle 
Diet,  and  by  an  associate  Magisterial  Committee  {Amtsaus- 


294 


THE  GOVERNME>TTS  OF  GERMANY. 


schuss)  composed  of  the  chiefs  of  the  Communes  and  the  pos- 
sessors of  certain  historically  derived  independent  proprietary 
districts.  These  districts  serve  in  their  grade  as  minor  nnits 
for  both  state  administration  and  communal  self-direction. 

489.  The  Rural  Commune  (Landgemeinde) . — The  organi- 
zation of  the  Enral  Commune  varies  widely  in  the  different 
Provinces,  resting  in  part  on  ancient  local  custom  and  old 
local  laws,  and  not  altogether  upon  any  uniform  plan.  Com- 
mune differs  from  Commune  in  points  of  economical  and  social 
condition  too  important  to  be  overlooked.  In  some  a  general 
assembly  of  the  people  acts  as  the  controlling  body  ;  in  others 
a  representative  council.  In  some  the  executive  officer  is 
known  as  '  mayor/  in  some  as  '  president/  in  some  as  '  village 
judge ' ;  in  most  he  is  assisted  by  one  or  more  aids  or  alder- 
men, and  a  great  variety  of  modes  of  choice  to  the  executive 
office  prevails.  The  Communes  may  be  said  to  be  in  all 
stages  of  the  approach  to  complete  self-government  in  local 
affairs.    System  has  not  yet  thoroughly  penetrated  to  them. 

490.  The  City  Communes  {Stadtgemeinde) , — Among  the 
City  Communes  there  is  also  great  variety  of  organization; 
but  not  so  great  as  among  the  rural  Communes.  The  towns 
have  been  brought  to  a  somewhat  uniform  system  by  reforms 
introduced  by  that  great  systematizer  and  vivifier  of  Prussian 
administration,  Baron  vom  Stein.  In  some  cities  there  is  a 
single  executive,  —  a  single  Burgomaster,  —  perhaps  assisted 
by  certain  Boards  ;  in  others  the  Burgomaster  has  colleagues ; 
in  still  others  the  magistracy  is  collegiate,  —  is  itself  a  Board. 
In  all  there  are  councils  more  or  less  directly  representative  of 
the  people.  In  the  cities,  as  in  every  other  unit  of  local  ad- 
ministration, the  subjects  of  finance,  police,  and  the  military 
are  exclusively  controlled  from  Berlin ;  and  in  these  branches 
of  administration  the  city  governments  are  agencies  of  the 
central  government.  They  thus  have  a  double  character ;  they 
are  at  one  and  the  same  time  representatives  of  the  authori- 
ties at  the  capital  and  of  the  citizens  at  home.    When  acting 


THE  GOVERKMENTS  OF  GERMANY. 


295 


as  agencies  of  the  state  administration  tliey  are,  of  course, 
responsible  to  the  central  Departments. 

The  qualifications  for  citizenship  vary  widely  in  the  different  city 
Communes.  In  some  the  possession  of  landed  estate  is  required,  in 
others  the  payment  of  a  certain  tax,  etc. 

There  is  in  Prussian  local  organization  none  of  the  extreme,  the 
rather  forced  uniformity  so  noticeable  in  France,  where  no  difference  is 
made  between  rural  Communes  and  city  Communes,  only  the  greater 
cities,  like  Paris  and  Lyons,  being  given  a  special  organization.  In 
Prussia  historical  and  other  grounds  of  variety  have  been  freely 
observed. 

491.  General  Principles  of  Prussian  Town  Government. 

—  Although  without  uniformity  of  structure,  town  govern- 
ment in  Prussia  has  certain  uniformities  of  principle  at  its 
basis  which  render  it  a  striking  example  of  active  self- 
government.  The  mayor  of  a  Prussian  city  is  not  the  Execu- 
tive ;  he  is  simply  directing  president  of  the  executive.  There 
is  associated  with  him  a  board  of  Aldermen  most  of  whose 
members  are  elected  from  the  general  body  of  citizens,  to 
serve  without  salary,  but  an  important  minority  of  whose 
members  are  salaried  officials  who  have  received  a  thorough 
technical  training  in  the  various  branches  of  administration, 
and  whose  tenure  of  office  is  in  effect  permanent :  and  this 
board  of  Aldermen  is  the  centre  of  energy  and  rule  in  city 
government.  But  it  acts  under  check.  A  town  council  repre- 
sents the  citizens  in  the  exercise  of  a  control  over  the  city 
budget  and  citizens  not  of  the  Council  as  well  as  Councilmen 
act  with  the  Aldermen  in  the  direction  of  executive  business. 
The  Aldermen  act  in  Committees  in  the  administration  of  the 
city,  and  associated  with  their  committees  are  certain  delega- 
tions of  town-councilmen  and  certain  'select  citizens'  named 
by  the  Council.  In  the  wards  of  the  larger  towns  the  Alder- 
men command  also  the  assistance  of  local  committees  of  citi- 
zens, by  whom  the  conditions  and  needs  of  the  various  districts 
of  the  town  are  familiarly  known.    Thus  in  the  work  of  poor- 


296  THE  GOVERNMENTS  OF  GERMANY. 

relief,  in  tlie  guardianship  of  destitute  orplians,  in  education, 
and  in  tax  assessment  '  select  citizens '  commonly  reinforce  the 
more  regular,  the  official,  corps  of  city  officers.  This  literal 
self-government,  which  breaks  down  the  wall  of  distinction 
between  the  official  and  the  non-official  guardian  of  city  in- 
terests and  presses  all  into  the  service  of  the  community,  is 
not  optional;  it  is  one  of  the  cardinal  principles  of  the  system 
that  service  as  a  ^  select  citizen '  is  to  be  enforced  by  penalties 
—  by  increasing  the  taxes  of  those  who  refuse  to  serve. 

492.  Berlin  "governs  itself  through  more  than  ten  thousand  men 
belonging  to  the  wealthier  part  of  the  middle  classes."  ^  The  citizens 
chosen  for  ward  work  or  for  consultation  with  the  central  committees  of 
Aldermen  and  town-councillors  include  merchants,  physicians,  solicitors, 
manufacturers,  head-masters  of  public  schools,  and  like  representative 
persons. 

493.  The  three-class  system  of  voting  described  in  sees.  466  and  468 
obtains  also  in  all  municipal  elections  in  Prussia,  so  that  weight  in  the 
electoral  control  of  city  affairs  is  proportioned  to  tax-assessment.  One- 
third  of  the  elected  Aldermen  and  town-councillors  represent  the 
wealthy  class,  one-third  the  middle  class,  one-third  the  'proletariat.' 

494.  The  Administration  of  Justice.  —  The  Prussian  courts 
of  justice,  like  those  of  the  other  states  of  the  Empire,  have 
the  general  features  of  their  organization  and  jurisdiction  pre- 
scribed by  imperial  law  (sec.  43G).  They  are  Prussia's  courts; 
but  they  also  serve  as  courts  of  the  Empire  ;  Prussian  law 
commands  only  their  perso???ieZ  and  their  territorial  compe- 
tence. At  the  head  of  the  system  sits  the  supreme  court  of 
the  Empire  (Reichsgericht) ,  to  which  the  courts  of  all  the 
other  states  stand  subordinated.^  In  each  Province  there  is  a 
Superior  District  Court  (Oberlandesgericht) ,  and,  next  below  it, 
a  District  Court  (Landgericht) .  In  each  magisterial  District 
there  is  an  Amtsgericht. 

1  Professor  Gneist,  Contemporary  Review,  Vol.  46  (1884),  p.  777. 

2  Prussia  is  vouchsafed  by  imperial  law  the  privilege  of  retaining  her 
own  supreme  court ;  but  she  has  not  availed  herself  of  the  permission. 


THE  GOVERNJ^IENTS  OF  GERMANY. 


297 


495.  The  Amtsgerichtj  which  is  the  court  of  first  instance  in 
minor  civil  cases,  consists  of  one  or  of  several  judges,  accord- 
ing to  the  amount  of  business  there  is  for  the  court  to  despatch : 
for  when  there  is  more  than  one  judge,  the  work  is  not  handled 
by  them  together,  but  separately ;  it  is  divided,  either  logically 
or  territorially. 

496.  The  higher  courts,  the  District  Court,  that  is,  and  the 
Superior  District  Court,  consist  each  of  a  number  of  judges. 
At  the  beginning  of  each  year,  the  full  bench  of  judges  in 
each  court  determine  a  division  of  the  business  of  the  court 
among  themselves,  constituting  themselves  in  separate  '  cham- 
bers '  for  separate  classes  of  cases.  There  is  always  a  ^  civil 
chamber'  and  a  'criminal  chamber,'  and  often  a  chamber  for 
commercial  cases  {Kammer  fiir  Handel ssachen) . 

Each  chamber  has  its  own  president  and  its  own  independent 
organization. 

497.  Minor  criminal  cases  are  tried  in  sheriffs'  courts  (Schof- 
fengerichte)  sitting  in  the  Magisterial  Districts ;  more  serious 
offences  by  the  criminal  chamber  of  the  District  Court ;  all 
grave  crimes  by  special  jury-courts  {Schivurgerichte)  which  sit 
under  the  presidency  of  three  judges  of  the  District  Court. 

An  appeal  from  a  sheriff's  court  on  the  merits  of  the  case  can  go  no 
further  than  the  District  Court.  Appeals  on  the  merits  of  the  case  from 
the  criminal  chamber  of  the  District  Court  are  not  allowed ;  but  a  case 
can  be  taken  from  that  court  on  the  ground  of  the  neglect  of  a  rule  of 
law  to  the  Superior  District  Court,  and  on  other  legal  grounds  to  the 
Imperial  Court,  for  revision. 

498.  The  nomination  of  all  judges  rests  with  the  king :  but 
the  appointment  is  for  life  and  the  judges  stand  in  a  position 
of  substantial  independence.  The  Minister  of  Justice,  how- 
ever, completely  controls  all  criminal  prosecutions :  for  no 
criminal  prosecution  can  be  instituted  except  by  the  states- 
attorneys  who  represent  the  government  in  the  several  courts, 
and  these  hold  their  offices  by  no  permanent  tenure,  but  only 
at  the  pleasure  of  the  Minister. 


298 


THE  GOVERNMENTS  OF  GERMANY. 


Purity  in  the  administration  of  justice  is  sought  to  be  secured  by 
public  oral  proceedings.  Until  a  very  recent  period  all  proceedings  in 
the  Prussian  courts  were  written :  the  plea  and  the  answer  constituted 
the  suit.    Now  public  oral  proceedings  are  made  imperative. 

499.  The  organization  of  justice  in  Prussia  provides  for  the  assump- 
tion by  the  state  of  a  certain  'voluntary'  jurisdiction,  some  of  which, 
such  as  the  exercise  of  guardianship  and  the  probate  of  wills  (which 
latter  is  made  a  function  of  the  Amtsgerichf)  are  quite  familiar  to  the 
practice  of  other  countries ;  but  others  of  which,  such  as  an  oversight 
over  certain  feudal  interests,  are  somewhat  novel  in  their  character. 

The  system  knows  also  certain  oflGicially  commissioned  Arbitrators 
(^Schiedsmdnner^  and  certain  trade  judges,  which  are  in  some  respects 
peculiar  to  itself. 

500.  Administrative  Courts  ( Verwaltungsgerichte).  —  The 
same  distinction  between  administrative  and  ordinary  courts 
of  justice  that  we  have  observed  in  France  obtains  also  in 
Prussia  (sec.  353).  ^  Where  the  use  of  the  state's  sovereignty 
{Hoheitsreclit)  begins,  there  begins  the  competence  of  the  ad- 
ministrative courts.'  ^  Here  again  appears  the  organizing  hand 
of  Stein.  He  established  for  Prussia  the  principle  that  cases 
arising  out  of  the  exercise  of  the  state's  sovereignty  should  be 
separated  in  adjudication  from  cases  between  private  individ- 
uals and  be  allotted  to  special  courts.  Such  are  cases  of  dam- 
age done  to  an  individual  through  the  act  of  an  administrative 
officer,  or  cases  of  alleged  illegal  action  on  the  part  of  a  public 
official,  —  in  brief,  all  cases  of  conflict  between  the  public 
power  and  private  rights. 

501.  The  courts  charged  with  this  jurisdiction  are,  (1)  in  the 
Circle,  the  Circle  Committee  (sec.  486),  presided  over,  as  in 
dealing  with  other  matters,  by  the  Landrath,  and  in  the  cities 
which  themselves  constitute  Circles,  the  City  Committee  (Stadt- 
aiisscJmss),  consisting  of  the  Burgomaster  as  president  and 
four  members,  all  of  whom  must  be  qualified  for  judicial  or 
for  the  higher  grades  of  administrative  office,  elected  by  the 
magistracy  of  the  city,  acting  collegiately,  for  a  term  of  six 

1  Schuize,  p.  160. 


THE  GOVERNMENTS  OF  GERMANY. 


299 


years.  (2)  In  the  Government  District,  the  District  Committee 
(sec.  484),  to  whose  presidency  when  sitting  in  this  capacity, 
the  king  may  appoint,  as  representative  of  the  President  of  the 
Administration,  one  of  its  members  under  the  title  of  Direc- 
tor of  the  Administrative  Court  (Verwaltungsgerichtsdirektor) . 
(3)  The  Superior  Administrative  Court  in  Berlin  ( Oberverwalt- 
ungsgericht) ,  whose  members  are  appointed  by  the  king,  with 
the  consent  of  the  council  of  ministers,  for  life.  This  court 
stands  upon  the  same  footing  of  rank  with  the  supreme  fed- 
eral tribunal,  the  Reichsgericht.  Its  members  must  be  qualified, 
half  of  them  for  high  judicial,  half  for  high  administrative 
office.  It  acts,  like  the  other  courts,  in  divisions  or  '  senates,' 
each  of  which  has  its  separate  organization  and  which  come 
together  onty  for  the  settlement  of  certain  general  questions. 

502.  The  Court  of  Conflicts  (GerichtshoffUr  Kompetenz-kon- 
Jlikte).  — Between  the  two  jurisdictions,  the  ordinary  or  private 
and  the  administrative,  stands,  as  in  France,  a  Court  of  Con- 
flicts. It  consists  of  eleven  judges  appointed  for  life  (or  for 
the  term  of  their  chief  office)  ;  and  of  these  eleven  six  must 
be  members  of  the  Superior  District  Court  of  Berlin,  —  must 
belong,  that  is,  to  a  court  of  the  ordinary  jurisdiction.  The 
other  five  must  be  persons  eligible  to  the  higher  judicial  or 
administrative  offices.   (Comp.  sec.  357.) 

503.  The  Prussian  Courts  and  Constitutional  Questions. — 

The  Prussian  courts  have  no  such  power  of  passing  upon  the  consti- 
tutionality of  laws  as  is  possessed  by  the  courts  of  the  United  States. 
They  cannot  go  beyond  the  question  whether  a  law  has  been  passed,  or, 
in  administrative  cases,  an  official  order  issued,  in  due  legal  form, 

504.  "  When  the  Prussian  citizen,  admitted,  in  the  severe  school  of 
self-government,  to  a  share  in  the  magisterial  function,  shall  have 
gained  in  political  consciousness;  when  the  protection  of  right  within 
the  sphere  of  public  law  shall  have  been  more  surely  secured  and  ex- 
tended througli  an  ever  wider  sphere,  then  will  the  Prussian  state,  not 
merely  through  military  development,  but  also  through  its  well-mem- 
bered  (wohlbegliederte)  and  free  administrative  arrangements,  fulfil  its 
national  destiny  (deutschen  Beruf),  in  virtue  of  which  it  is  bound 


300 


THE  GOVERNMENTS  OF  GERMANY. 


(hestimmt)  to  advance,  with  a  strong  hand  and  to  a  fortunate  issue 
(gluchlich  hinauszxifuhren)  upon  the  immovable  foundations  of  a  truly 
popular  monarchy,  the  great  political  and  economical  tasks  of  the 
present."  ^ 


Some  E-epresextative  Authorities. 

Laband,  "  Das  Staatsrecht  des  Deutschen  Reiches."  3  vols.  Tubingen, 
1876-1882.    First  vol.  of  new  ed.,  1888. 

Laband,  "  Das  Staatsrecht  des  Deutschen  Reiches  "  (in  Marquardsen's 
"  Handbuch  des  oeffentlichen  Rechts  der  Gegenwart ").  Frei- 
burg in  B.,  1883. 

V.  Ronne,  "  Das  Staatsrecht  des  Deutschen  Reiches."  2d  ed.  Leipzig, 
1876. 

Grais,  Graf  Hue  de.    (See  under  Prussia.) 

Alejer,  Otto,  "  Einleitung  in  das  deutschen  Staatsrecht."  2d  ed.  Frei- 
burg in  B.,  1884. 
Demombynes,  "Constitutions  Europeennes,"  Vol.  11. ,  p.  487  et  seq. 

PRUSSIA. 

Schulze,  Hermann,  "Das  preussische  Staatsrecht,  auf  Grundlage  des 

deutschen  Staatsrechtes."    2  vols.    Leipzig,  1872-1877. 
Schulze,  Hermann,  "  Das  Staatsrecht  des  Konigreichs  Preussen  "  (in 

Marquardsen's  "  Handbuch  ").    Freiburg  in  B.,  1884. 
Ronne,  Ludwig  v.,  "  Das  Staatsrecht  der  preussischen  Monarchie."  3 

Parts,  5  vols.    4th  ed.,  1881-1883. 
Grais,  Graf  Plue  de,  "  Handbuch  der  Verfassung  und  Verwaltung  in 

Preussen  und  im  deutschen  Reiche."  2d  ed.  Berlin,  1882. 
Demombynes,  "  Constitutions  Europeennes,"  Vol.  XL,  p.  733  et  seq. 
Seeley,  J.  R.,  "  Life  and  Times  of  Stein."   (Part  I.,  Chap.  V. ;  Part 

in.,  Chap.  I. ;  Part  V.,  Chaps.  II.,  IIL) 
Morier,  R.  B.  D.,  in  Cobden  Club  Essays  on  "  Local  Government  and 

Taxation."  1875. 


1  Schulze,  p.  165. 


VIII. 


THE  GOVERNMENTS  OF  SWITZERLAND. 

505.  Feudalism  in  Switzerland.  —  Until  the  beginning  of 
the  fourteenth,  century  the  towns  and  communes  of  the  country 
now  called  Switzerland  were  all  held  fast  in  the  meshes  of  the 
feudal  system.  Real  vassalage,  indeed,  such  as  the  low  coun- 
tries of  France  and  Germany  knew,  had  never  penetrated  to 
all  the  valleys  of  the  Alps ;  many  a  remote  commune  had 
never  known  anything  but  a  free  peasantry ;  and  hardly  any- 
where near  the  heart  of  the  great  mountains  had  feudal  fealty 
meant  what  it  meant  elsewhere.  Still  great  neighbor  lords  and 
monasteries  had  swept  even  these  mountain  lands  at  least  nomi- 
nally within  their  overlordships,  and  most  of  the  Swiss  Can- 
tons of  to-day  represent  for  the  most  part  various  pieces  of  old 
feudal  domains. 

506.  First  Movements  towards  Cantonal  Independence.  — 
In  1309,  however,  began  the  process  which  was  to  create  the 
Switzerland  of  our  time.  In  that  year  the  Cantons  of  Schwyz, 
Uri,  and  Unterwalden,  lying  close  about  the  lake  of  Lucern, 
won  from  the  Emperor  Henry  VII.  the  recognition  of  their 
freedom  from  all  supremacy  save  that  of  the  Empire  itself. 
They  had  already,  about  the  middle  of  the  thirteenth  century, 
drawn  together  into  a  league  which  proved  the  seed  of  the 
modern  Confederacy.  That  Confederacy  has  two  distinguish- 
ing characteristics.  It  has  brought  down  to  us,  through  an 
almost  unbroken  tradition,  the  republican  institutions  of  the 
Middle  Ages ;  and  it  has  by  slow  processes  of  cautious  federa- 


302 


THE  GOVERNIVIENTS  OF  S\yiTZERLANr). 


tion,  drawn  together  into  a  real  union  communities  the  most 
diverse  alike  in  point  of  race/ of  language,  and  of  institutions 
without  destroying  their  individuality. 

507.  The  Processes  of  Confederate  Growth.  —  In  its  brief- 
est terms  the  story  is  this.  The  Cantons  broke  from  the  fatal 
toils  of  the  feudal  system  while  still  in  possession  of  those  local 
liberties  which  the  disintegrateness  of  that  system  gave  leave 
to  grow  wherever  courageous  men  could  muster  numbers  enough 
to  assert  their  independence ;  having  a  common  cause  against 
the  feudal  powers  about  them,  they  slowly  drew  together  to 
each  other's  support ;  and,  having  allied  themselves,  they  went 
on  to  show  the  world  how  Germans,  French,  and  Italians,  if 
only  they  respect  each  other's  liberties  as  they  would  have 
their  own  respected,  may  by  mutual  helpfulness  and  forbear- 
ance build  up  a  union  at  once  as  stable  and  as  free  as  political 
history  can  show.  Several  centuries  elapsed  before  the  de- 
velopment was  complete,  for  the  Confederation,  as  finally 
made  up,  consisted  of  the  two  very  different  elements  of 
strong,  and  for  the  most  part  aristocratic  free  cities  and  quiet 
rural  peasant  democracies.  It  was  necessarily  a  long  time  be- 
fore even  common  dangers  and  common  interests  brought  proud 
Cantons  like  Bern,  and  aristocratic  cities  like  Geneva,  into  cor- 
dial relations  with  the  humble  originators  of  the  Confederacy, 
Schwyz,  Uri,  and  Unterwalden.  But  circumstances  constrained 
and  wisdom  prevailed :  so  that  union  was  at  last  achieved. 

508.  French  Interference.  —  The  year  1513  may  be  taken 
as  marking  the  close  of  the  period  during  which  the  Con- 
federacy won  the  place  it  was  always  to  keep  among  the  powers 
of  Europe.  In  that  year  the  League  was  joined  by  the  last  of 
those  thirteen  German  Cantons  which  were  to  constitute  its 
central  membership,  so  to  say,  down  to  the  French  Eevolution. 
It  was  not  till  1848,  however,  that  its  constitution  was  put 
upon  its  present  foundations ;  and  not  till  1874  that  that  con- 
stitution received  at  all  points  its  present  shape.  In  the  mean- 
time events  of  the  greatest  magnitude  gave  direction  to  Swiss 


THE  GOVERNMENTS  OF  SWITZERLAND.  303 


affairs.  The  great  powers  had  recognized  the  independence  of 
Switzerland  in  the  Treaty  of  Westphalia,  1648  (sec.  379).  The 
thirteen  original  Cantons  had  received  great  French  cities,  like 
Geneva,  to  the  West,  and  certain  Italian  lands  to  the  South 
either  into  close  alliance  or  into  fixed  subjection.  The  French 
Kevolution  had  sent  French  troops  into  Switzerland,  in  sup- 
port of  a  fruitless  attempt  to  manufacture  out  of  the  always 
stiffly  independent  Cantons,  hitherto  only  confederates,  a  com- 
pact and  centralized  "  Helvetic  Republic,"  after  the  new  model 
just  set  up  in  unhappy  France  (1798-1802).  Xapoleon  had 
intervened  (1803-1814)  for  the  purpose  of  both  loosing  these 
artificial  bonds  and  creating  a  new  cement  for  the  League  in 
the  shape  of  a  common  allegiance  to  himself.  And,  in  1815, 
the  pressure  of  the  French  power  being  removed,  reaction  had 
come.  The  irritated  Cantons,  exasx:)erated  by  the  forms  of  a 
government  not  of  their  own  choosing,  had  flung  apart,  to  the 
practice  of  principles  of  cantonal  sovereignty  broader,  extremer 
even  than  those  upon  which  they  had  based  their  Union  before 
1798.  The  reaction  then,  in  its  turn,  of  course,  brought  its  own 
penalties.  Troubles  had  ensued  which  read  very  much  like 
those,  so  familiar  to  Americans,  which  forced  a  strong  federal 
government  upon  the  United  States. 

509.  The  Sonderbund  War.  — Eeligious  differences  of  opin- 
ion, however,  not  political,  were  in  Switzerland  the  occasion  of 
the  strife  which  was  to  bring  union  out  of  disunion.  After  the 
power  of  Xapoleon  had  been  broken,  the  Congress  of  Vienna 
had  sought  to  readjust  all  the  arrangements  that  he  had  dis- 
turbed, and  Swiss  affairs  had  not  been  overlooked.  The  Can- 
tons were  induced  to  receive  Geneva,  Valais,  Xeuchatel,  and 
the  territories  hitherto  held  as  dependencies,  into  full  confed- 
erate membership,  and  to  agree  to  a  Pact  (known  as  the  Pact 
of  1815)  which  gave  to  the  League,  with  its  increased  member- 
ship of  twenty-two  Cantons,  a  new  basis  of  union.  One  of  the 
clauses  of  that  Pact  contained  a  solemn  guarantee  of  the  rights 
and  privileges  of  the  monasteries  still  maintained  in  the  Roman 


304  THE  GOVERNMENTS  OF  SWITZERLAND. 

Catholic  Cantons :  and  upon  that  guarantee  were  based  the  hopes 
of  all  parties  for  peace  among  the  members  of  the  League  touch- 
ing questions  of  religion.  But  the  guarantee  was  broken  down. 
The  wave  of  democratic  reform  swept  steadily  and  resistlessly 
through  Switzerland  during  the  revolutionary  period  of  1830- 
1848,  and  where  the  Protestant  and  Eoman  Catholic  parties 
were  nearly  equal  in  popular  force  threatened  not  a  few  of  the 
oldest  foundations  of  the  mediaeval  church.  The  crisis  was  first 
felt  in  Zurich,  where  the  excesses  of  a  radical  party  temporarily 
in  control  brought  about,  in  1839,  a  violent  reaction.  The  next 
year  saw  the  disturbance  transferred  to  Aargau.  There  the 
anti-Catholic  party,  commanding,  during  a  period  of  constitu- 
tional revision,  a  narrow  popular  majority,  and  exasperated  by 
the  violent  opposition  tactics  of  the  clerical  party,  forced  a 
vote  in  favor  of  the  abolition  of  the  eight  monasteries  of  the 
Canton.  The  Diet  of  the  Confederation  was  thereupon  asked, 
of  course,  by  the  aggrieved  party  whether  it  would  permit  so 
flagrant  a  breach  of  the  Pact  of  1815.  It  was  forced  by  a  con- 
flict of  interests  to  a  compromise,  agreeing  to  the  abolition  of 
four  of  Aargau's  eight  monasteries.  This  was  in  August,  1843. 
The  next  month  saw  the  formation  of  a  separate  League  (xS'o?i- 
derhund)  by  the  seven  Eoman  Catholic  cantons,  Schwyz,  Uri, 
Unterwalden,  Luzern,  Freiburg,  Yalais,  and  Zug.  The  depu- 
ties of  these  Cantons  were,  however,  slow  in  withdrawing  from 
the  Diet,  and  the  Diet  was  reluctant  to  come  to  open  strife 
with  its  recalcitrant  members.  Four  years  this  league  within 
a  league  was  permitted  to  continue  its  obstructive  agitation. 
But  at  last,  in  ]Srovember,  1847,  war  came  —  a  sharp,  decisive 
contest  of  only  eighteen  days'  duration,  in  which  the  seceded 
Cantons  were  overwhelmed  and  forced  back  to  their  allegiance. 

510.  The  New  Constitution. — Constitutional  revision  fol- 
lowed immediately.  The  Pact  of  1815  was  worn  out :  a  strong 
and  progressive  constitution  had  become  a  necessity  which  not 
even  the  party  of  reaction  could  resist  or  gainsay.  By  the 
Constitution  of  1848  there  was  created,  out  of  the  old  dis- 


THE  GOVERNMENTS  OF  SWITZERLAND. 


305 


cordant  Confederation  of  States  (Staatenbund)  the  present 
federal  State  {Bundesstaat) .  That  Constitution,  as  modified 
and  extended  by  the  important  revision  of  1874,  is  the  present 
Constitution  of  Switzerland. 

511.  Character  of  the  Constitution.  —  The  federal  govern- 
ment thus  established  has  many  features  which  are  strikingly 
like,  as  well  as  many  which  are  almost  as  strikingly  unlike, 
the  familiar  features  of  our  own  national  system.  It  has  had, 
since  1874,  a  federal  Supreme  Court,  which  is  in  many  impor- 
tant fields  of  jurisdiction  the  highest  tribunal  of  the  land ;  and 
it  has  had  ever  since  1848  a  Legislature  consisting,  as  with  us, 
of  two  branches,  or  Houses,  the  one  representative  of  the  peo- 
ple, the  other  representative  of  the  states  of  the  Confedera- 
tion. The  popular  chamber  is  called  the  "  National  Council " 
(der  Nationalrath) ,  the  federal  senate,  the  "  Council  of  States  " 
{der  Stdnderath).  The  former  represents  the  people  as  a 
whole ;  the  latter,  the  States  as  constituent  members  of  the 
Confederation. 

Much  of  the  resemblance  of  these  arrangements  to  our  own  is  due  to 
conscious  imitation.  The  object  of  the  reformers  of  1848  and  1874  was 
not,  however,  to  Americanize  their  government,  and  in  most  respects  it 
remains  distinctively  Swiss. 

512.  Nationality  and  State  Sovereignty.  —  Much  as  such 
institutions  resemble  our  own  federal  forms,  the  Constitution 
of  Switzerland  rests  upon  formal  foundations  such  as  were  laid 
for  our  Union  by  the  failure  of  the  Articles  of  Confederation, 
rather  than  upon  such  as  were  laid  by  our  war  between  the 
States,  —  upon  a  federal,  that  is,  rather  than  upon  a  national 
conception.  The  Swiss  Constitution  does  indeed  itself  speak 
of  the  Swiss  nation,  declaring  that  "the  Swiss  Confederacy 
has  adopted  the  following  Constitution  with  a  view  to  estab- 
lishing the  union  (Bund)  of  the  Confederates  and  to  maintain- 
ing and  furthering  the  unit}',  the  power,  and  the  honor  of  the 
Swiss  nation  "  :  and  not  even  the  war  between  the  States  put 
the  word  nation  into  our  Constitution.    But  the  Constitution 


306  THE  GOVERNMENTS  OF  SWITZERLAND. 


of  Switzerland  also,  witli  little  regard  for  consistency,  contains 
a  distinct  and  emphatic  assertion  of  that  principle  of  divided 
sovereignty  which,  is  so  much  less  familiar  to  us  now  than  it 
was  before  1861.  It  declares  that  "the  cantons  are  sover- 
eign, so  far  as  their  sovereignty  is  not  limited  by  the  federal 
Constitution,  and  exercise  as  such  all  rights  which  are  not  con- 
ferred upon  the  federal  power  " ;  and  its  most  competent  inter- 
preters are  constrained  to  say  that  such  a  constitution  does 
not  erect  a  single  and  compacted  state  (Einheitstaat)  of  which 
the  Cantons  are  only  administrative  divisions;  but  a  federal 
state,  the  units  of  whose  membership  are  themselves  states, 
possessed,  within  certain  limits,  of  independent  and  supreme 
power.  The  drift  both  of  Switzerland's  past  history  and  her 
present  purpose  is  unquestionably  towards  complete  nation- 
ality ;  but  her  present  Constitution  was  a  compromise  between 
the  advocates  and  the  opponents  of  nationalization ;  and  it  does 
not  yet  embody  a  truly  national  organization  or  power. 

513.  Indefinite  Constitutional  Grants.  —  At  the  same  time, 
the  Swiss  Constitution  leaves  open  a  larger  debatable  ground 
between  federal  and  cantonal  powers  than  that  which  is  left 
open  by  our  Constitution  between  the  powers  of  the  federal 
government  and  the  powers  of  the  States.  The  Constitution 
of  the  United  States  limits  the  federal  power  by  drawing  a 
tolerably  clear  line  between  state  and  national  provinces :  it 
distinctly  enumerates  the  powers  which  Congress  shall  exer- 
cise as  well  as  those  which  the  States  shall  not  exercise  (sees. 
889-892).  The  Swiss  Constitution,  on  the  other  hand,  makes 
no  such  careful  enumeration.  It  contents  itself  with  such  in- 
definite grants  as  these :  that  the  federal  legislature  shall  have 
power  to  pass  "laws  and  resolutions  concerning  those  subjects 
which  the  Confederacy  is  commissioned  by  the  federal  consti- 
tution to  act  upon";  to  control  the  foreign  relations  of  the 
Cantons ;  to  guarantee  the  constitutions  and  territories  of  the 
Cantons ;  to  provide  for  the  internal  safety,  order,  and  peace 
of  the  country ;  to  adopt  any  measures  "  Avhich  have  the  ad- 


THE  GOVERNIVIENTS  OF  SWITZERLAND.  307 


ministration  of  the  federal  Constitution,  the  guaranteeing  of 
the  cantonal  constitutions,  or  the  fulfilment  of  federal  duties 
for  their  object"  ;  and  to  effect  revisions  of  the  federal  Consti- 
tution. 

This  indefiniteness  is  due,  in  large  part  at  least,  to  the  fact 
that  the  federal  Constitution  has  not  yet  been  put  upon  a  thor- 
oughly logical  basis.  Though  the  drift  of  national  sentiment 
has  been  strong  enough  to  give  the  federal  government  great 
powers,  it  has  not  as  yet  been  strong  enough  to  give  it  com- 
plete powers  within  its  own  sphere.  Cantonal  jealousy  has 
withheld  logical  roundness  from  the  prerogatives  of  the  cen- 
tral authorities :  with  the  result  of  leaving  their  outlines  a 
little  vague. 

514.  Guarantee  of  the  Cantonal  Constitutions.  — The  Swiss 
federal  Constitution  is  more  definite  in  guaranteeing  to  the 
Cantons  their  constitutions  than  our  federal  Constitution  is  in 
guaranteeing  to  the  States  "  a  republican  form  of  government." 
The  guarantee  is  made  to  include  the  freedom  of  the  people 
and  their  legal  and  constitutional  rights  ;  the  exercise  of  those 
rights  under  representative  democratic  forms  ;  and  the  revision 
of  any  cantonal  constitution  whenever  an  absolute  majority  of 
the  citizens  of  the  Canton  desire  a  revision. 

The  Cantoxal  Goverxments. 

515.  The  Cantonal  Constitutions  and  the  Federal  Consti- 
tution. —  So  deeply  is  Swiss  federal  organization  rooted  in  can- 
tonal precedents,  that  an  understanding  of  the  government  of 
the  Confederation  is  best  gained  by  studying  first,  the  political 
institutions  of  the  Cantons.  At  almost  all  points  the  federal 
government  exhibits  likeness  to  the  governments  of  the  Can- 
tons, out  of  whose  union  it  has  grown.  As  our  own  federal 
Constitution  may  be  said  to  generalize  and  apply  colonial  habit 
and  experience,  so  the  Swiss  Constitution  may  be  said  to  gen- 
eralize and  apply  cantonal  habit  and  experience :  though  both 


308 


THE  GOVERNMENTS  OF  SWITZERLAND. 


our  own  Constitution  and  that  of  Switzerland  have  profited 
largely  by  foreign  example  also. 

In  some  respects  the  Swiss  Constitution  is  more  conservative, 
—  or,  if  you  will,  less  advanced  —  than  the  Constitution  of  the 
United  States.  Those  who  have  fought  for  union  in  Switzer- 
land have  had  even  greater  obstacles  to  overcome  than  have 
stood  in  the  way  of  the  advocates  of  a  strong  central  govern- 
ment in  this  country.  Differences  of  race,  of  language,  and  of 
religion,  as  well  as  stiffly  opposing  political  purposes,  have 
offered  a  persistent  resistance  to  the  strengthening  and  even 
the  logical  development  of  the  prerogatives  of  the  federal 
power.  The  Constitution  of  the  Confederation,  therefore,  bears 
many  marks  of  compromise.  It  gives  evidence  at  many  points 
of  incomplete  nationalization,  even  of  imperfect  federalization. 
Cantonal  institutions  are,  consequently,  upon  a  double  ground 
entitled  to  be  first  considered  in  a  study  of  the  governments 
of  Switzerland.  Both  their  seK-assertive  vitality  and  their 
direct  influence  upon  federal  organization  make  them  the  cen- 
tral subject  of  Swiss  politics. 

516.  Position  of  the  Legislative  Power.  —  The  develop- 
ment of  political  institutions  has  proceeded  in  the  Swiss  cantons 
rather  according  to  the  logic  of  practical  democracy  than  ac- 
cording to  the  logic  of  the  schools  —  the  logic  of  elsewhere 
accepted  political  philosophy.  The  Swiss  have  not,  for  one 
thing,  hesitated  to  ignore  in  practice  all  dogmas  concerning 
the  separation  of  legislative,  executive,  and  judicial  functions.^ 
The  leading  principle  according  to  which  they  proceed  in  all 
political  arrangements  is,  that  in  every  department  of  affairs 
the  people  must,  either  immediately  or  through  representatives, 
exercise  a  direct,  positive,  effective  control.    They  do  not  hesi- 

1  I  say  '  in  practice ' ;  for  in  theory  such  distinctions  are  observed. 
The  constitutions  of  fully  half  the  Cantons  say  explicitly  that  legislative, 
executive,  and  judicial  functions  shall  be  kept  fundamentally  distinct; 
but  in  the  practical  arrangements  actually  made  the  line  of  demarcation 
is  by  no  means  sharply  drawn. 


THE  GOVERNMENTS  OF  SWITZERLAND. 


309 


tate,  therpiore,  to  give  to  their  legislative  bodies  a  share  both  in 
the  administration  and  in  the  interpretation  of  laws  ;  and  these 
bodies  are  unquestionably  the  axes  of  cantonal  politics. 

517.  A  Single  House. — A  very  great  variety  of  practice 
marks  the  organization  of  government  in  the  Cantons  ;  each 
Canton  has  had  its  own  separate  history  and  has,  to  a  certain 
extent,  separately  worked  out  its  own  political  methods  ;  but 
there  is  one  point  of  perfect  uniformity,  —  the  Legislature  of 
each  Canton  consists  of  but  a  single  House.  The  two  Houses  of 
the  federal  legislature  have  been  made  after  foreign,  not  after 
Swiss,  models.  In  Uri,  Unterwalden,  Glarus,  and  Appenzell 
this  single  law-making  body  is  the  Landsgemeinde,  the  free 
assembly  of  all  the  qualified  voters,  the  folk-moot;  but  in  the 
other  Cantons  the  legislative  assembly  is  representative.  Eep- 
resentatives  are  elected  by  direct  popular  vote  in  all  the  Cantons, 
and  in  almost  all  by  the  secret  ballot. 

Elections  are  for  a  term  which  varies  from  one  year  to  six  in  the 
different  Cantons,  the  rule  being  a  term  of  from  three  to  four  years. 
The  number  of  representatives  bears  a  proportion  to  tlie  number  of 
inhabitants  which  also  varies  as  between  Canton  and  Canton,  the  average 
being  about  one  to  every  994  inhabitants.^ 

In  most  of  the  cantons  the  legislative  body  is  called  the  Greater 
Council  (Grosser  Bath) — the  executive  body  being  the  Lesser  Council. 
In  some  it  is  called  the  Cantonal  Council  (Kantonsrath) ;  in  others,  the 
Landrath. 

518.  Functions  of  the  Cantonal  Legislatures.  —  The  func- 
tions of  these  councils  have  the  inclusiveness  characteristic  of 
Swiss  political  organization  of  democracy.  Kot  only  are  they 
entrusted  with  such  legislative  power  as  the  people  are  willing 
to  grant  away  from  themselves ;  they  also,  as  a  rule,  elect 
the  administrative  officers  of  the  Canton,  and  exercise,  after 
such  election,  a  scrutiny  of  administrative  affairs  which  pene- 
trates to  details  and  keeps  executive  action  completely  within 

1  Orelli,  Das  Staatsrecht  der  schweizerischen  Eidgenossensckajl  (^Handbuch) 
pp.  100,  101. 


310  THE  GOVERNMENTS  OP  SWITZERLAND. 


their  control.  It  is  a  recognized  principle  of  cantonai  govern- 
ment, indeed,  that  the  executive  body  —  executive  power,  as 
Tve  shall  see,  being  vested  in  a  board  or  commission,  not  in  an 
individual  —  is  a  committee  of  the  representativ^es  of  the  peo- 
ple, —  a  committee  of  the  legislative  Council/  To  that  coun- 
cil they  are  responsible,  as  the  selectmen  of  a  ]S'ew-England 
town  are  responsible  to  the  town-meeting  (sees.  1003,  1004). 

519.  Share  of  the  People  in  Legislation :  Imperative  Peti- 
tion. —  So  far  has  the  apparent  logic  of  democracy  been  carried 
in  Switzerland  that  the  people  are  given  in  several  ways  a 
direct  part  in  law-making.  It  may  even  be  said  that  in  some 
of  the  Cantons  the  councils  merely  formulate  the  laws,  while 
the  people  pass  them.  Swiss  law,  like  that  of  all  other  states 
possessing  popular  governments,  gives  to  the  people  a  certain 
right  of  initiative,  in  the  right  of  petition — which  is  generally 
coupled  with  a  duty  on  the  part  of  the  body  petitioned  to  give 
to  the  prayers  of  all  petitioners  full  and  careful  consideration. 
But  it  also  goes  much  further.  In  many  of  the  Cantons  an 
additional,  an  imperative  initiative  by  petition  is  given  to  the 
people.  Any  petition  which  is  supported  by  a  certain  number 
of  signatures  (the  number  is  usually  from  five  to  six  thousand) 
and  which  demands  action  upon  any  matter,  must  be  heeded  by 
the  Council ;  a  vote  must  be  taken  upon  it  by  the  Council,  and 
then  it  must  be  submitted  to  the  popular  vote,  even  if  the 
action  of  the  Council  upon  it  has  been  unfavorable. 

It  was  by  such  popular  initiative  that  compulsory  vaccination  was  done 
away  with  in  Ziirich,  by  a  decisive  vote,  against  the  wishes  of  the  Can- 
tonal Council,  in  1883.  Of  course  certain  formalities  are  required  for  the 
starting  of  these,  so  to  say,  authoritative  petitions,  or  a  certain  backing 
by  a  portion  of  the  members  of  the  Council.  Thus,  for  instance,  it  was 
the  law  in  Uri  until  the  adoption  of  her  new  Constitution  in  May,  1888, 
that  such  a  petition  could  be  started  only  if  first  proposed  by  seven  men 
belonging  to  seven  different  families.  The  new  Constitution  provides  that 
petitions  proposing  changes  in  the  Constitution  must  bear  at  least  fifty  sig- 
natures ;  and  that  every  voter  may  propose  acts  for  the  Landsgemeinde. 

1  OreUi,  p.  99. 


THE  GOVERNMENTS  OF  SWITZERLAND. 


311 


520.  The  Popular  Veto.  —  In  some  of  the  smaller  cantons, 
again,  the  people  are  given  a  right  of  Veto.  It  is  provided 
that,  within  a  certain  length  of  time  after  the  publication  of 
a  measure  passed  by  the  Council  (generally  about  a  month)  a 
popular  vote  upon  the  measure  may  be  forced  by  the  petition 
of  some  fifty  citizens  (the  number  varies  of  course  in  different 
Cantons)  and  the  measure  be  made  to  stand  or  fall  according 
to  the  decision  of  that  vote. 

521.  The  Referendum.  —  The  Veto,  however,  may  be  said  to 
have  given  way  to  the  Referendum.  In  every  Canton  of  the 
Confederation,  except  Freiburg  only,  the  right  of  the  people 
to  have  all  important  legislation  referred  to  them  for  confir- 
mation or  rejection  has  now  been,  in  one  form  or  another, 
established  by  law.^  In  the  smaller  Cantons,  which  have  had, 
time  out  of  mind,  the  directest  forms  of  democracy,  this  legisla- 
tion by  the  people  is  no  new  thing  ;  they  have  always  had  their 
Landsgemeinden,  their  assemblies  of  the  whole  people,  and  the 
legislative  function  of  their  Councils  has  long  been  only  the 
duty  of  preparing  laws  for  the  consideration  of  the  people  ; 
just  as  the  pro-bouleutic  Senate  in  Athens  prepared  legislation 
for  the  people  voting  in  the  Assembly  (sec.  76).  At  stated  in- 
tervals every  year,  all  acts  of  importance  are  submitted  to  the 
popular  vote,  a  vote  which  is  taken  in  the  little  Cantons,  like 
Uri  and  Unterwalden,  in  the  Assembly,  and  in  the  other  purely 
democratic  Cantons  which  have  no  popular  Assembly,  by  the 
ordinary  processes  of  poUing.  Among  the  Cantons  which  have 
representative  institutions,  on  the  other  hand,  the  Referendum 
is  merely  '  facultative  ' ;  that  is,  laws  are  not  submitted  to  the 
people,  as  of  course,  but  only  upon  the  demand,  through  peti- 
tion, of  a  certain  large  number  of  voters,  as  in  the  ca=;e  of 
the  ^  Veto.'  The  '  obligatory,'  or  invariable  Referendum  is,  of 
course,  simply  popular  legislation ;  the  '  facultative '  Referen- 

1  In  Valais,  however,  the  Referendum  appUes  only  to  certain  votes  upon 
financial  measures. 


312  THE  GOVERNMENTS  OF  SWITZERLAND. 


dum  may  be  described  as  a  popular  oversight  of  legislation :  it 
is  the  right  of  appeal  from  the  Council  to  the  people. 

522.  History  of  the  Referendum.  —  The  term  Beferendum  is  as 
old  as  the  sixteentli  century,  and  contains  a  reminiscence  of  the  strictly- 
federal  beginnings  of  government  in  two  of  the  present  Cantons  of  the 
Confederation,  Graubiinden,  namely,  and  Valais.  These  Cantons  were 
not  at  that  time  members  of  the  Confederation,  but  merely  districts 
allied  with  it  (zugewandte  Orte).  Within  themselves  they  constituted 
very  loose  confederacies  of  communes  (in  Graubiinden  three,  in  Valais 
twelve).  The  delegates  whom  the  communes  sent  to  the  federal  assem- 
bly of  the  district  had  to  report  every  question  of  importance  to  their 
constituents  and  crave  instruction  as  to  how  they  should  vote  upon  it. 
This  was  the  original  Beferendum.  It  had  a  partial  counterpart  in  the 
constitution  of  the  Confederation  down  to  the  formation  of  the  present 
forms  of  government  in  1848.  Before  that  date  the  members  of  the 
central  council  of  the  Confederation  acted  always  under  instructions 
from  their  respective  Cantons,  and  upon  questions  not  covered  by  their 
instructions  it  was  their  duty  to  seek  special  direction  from  their  home 
governments.  The  Beferendum  as  now  adopted  by  almost  all  the 
Cantons  bears  the  radically  changed  character  of  legislation  by  the 
people.    Only  its  name  now  gives  testimony  as  to  its  origin.^ 

523.  The  Executive  Power  is  collegiate  in  all  the  Cantons, 
is  exercised,  that  is,  not  by  a  single  individual  or  by  several 
individuals  acting  independently  of  each  other,  but  by  a  com- 
mission. This  Commission  is  variously  called  in  the  different 
Cantons.  In  some  it  is  known  as  the  Landamman  and  Coun- 
cil," in  others  as  the  "  Estates-Commission  "  {Standeskommis- 
sion),  in  some  as  the  "  Smaller  Council,"  but  in  most  as  the 
"Administrative  Council"  (Regierungsrath) .  Its  term  of  office 
varies  in  the  different  Cantons  from  one  to  six  years ;  but  the 
custom  is  re-election,  so  that  the  brief  tenure  does  not  in  prac- 
tice result  in  too  frequent  changes  in-  executive  personnel. 
The  members  of  the  executive  have  always  in  the  mountain 
Cantons  been  chosen  by  the  people  themselves ;  in  the  others 
they  were  formerly  elected  always  by  the  legislative  council — 


1  Orelli,  p.  104. 


THE  GOVERNMENTS  OF  SWITZERLAND,  313 

•whence  the  name,  in  some  cantons,  of  smaller  council."  Now 
direct  election  by  the  people  has  been  almost  universally 
adopted.  Still  the  Administrative  Council  remains,  in  func- 
tion, a  committee  of  the  Legislative  Council,  being  responsible 
to  it  for  its  acts,  and  taking  an  active  part  in  the  preparation 
and  consideration  of  legislative  measures.  It  has  proved  nec- 
essary for  the  Administrative  Council  to  give  over  trying  to 
act  in  all  matters  as  a  Board  and  to  divide  its  work  among 
Departments  having  a  general  resemblance  to  ministries.  But 
these  Departments  are,  strictly  speaking,  only  committees,  and 
the  Council  has  usually  a  very  real  coherence. 

The  presiding  officer  of  an  Administrative  Council  is  generally  known 
either  as  Landammann  or  as  Regierungsprdsident. 

524.  Local  Government :  the  Districts. — Local  government 
in  the  Cantons  exhibits  a  twofold  division,  into  Districts  and 
Communes.  The  District  is  an  area  of  state  administration, 
the  Commune  an  area  of  local  self-government.  The  executive 
functions  of  the  District,  the  superintendency  of  police,  namely, 
and  the  carrying  into  effect  of  the  cantonal  laws,  are  entrusted, 
as  a  rule,  not  to  a  board,  but  to  a  single  officer,  —  a  Bezirksam- 
mann  or  Hegierungs-Statthalter,  —  who  is  either  elected  by  pop- 
ular vote  in  the  District  or  appointed  by  one  of  the  central 
cantonal  councils,  the  legislative  or  the  administrative.  Asso- 
ciated with  this  officer,  there  is  in  some  Cantons  a  District  or 
county  Council  chosen  by  vote  of  the  people. 

525.  The  Gemeinde,  or  Commune,  enjoys  in  Switzerland  a 
degree  of  freedom  in  self-direction  which  is  possessed  by 
similar  local  organs  of  government  hardly  anywhere  else  in 
Europe.  It  owns  land  as  a  separate  corporation,  has  charge 
of  the  police  of  its  area,  of  the  relief  of  the  poor,  and  of  the 
administration  of  the  schools,  and  acts  in  the  direction  of 
communal  affairs  through  a  primary  assembly  which  strongly 
reminds  one  of  the  Xew-England  town-meeting  (sec.  1003). 
Besides  its  activities  as  an  organ  of  self-government  in  the 


314 


THE  GOVERNMENTS  OF  SWITZERLAND. 


direction  of  local  affairs,  it  serves,  however,  also  as  an  organ 
of  the  state  administration,  as  a  subdivision  of  the  District ; 
and  in  such  functions  it  is  subject  to  the  jurisdiction  of  the 
District  Stattlialter. 

Citizenship  in  Switzerland  is  naturally  associated  very  closely  with 
the  Commune,  —  the  immediate  home  government  of  the  citizen,  —  the 
primary  and  most  vital  organ  of  his  self-direction  in  public  affairs. 
The  Commune  is,  so  to  say,  the  central  political  family  in  Switzerland; 
it  is  to  it  that  the  primary  duties  of  the  citizen  are  owed. 

526.  In  the  Commune,  as  in  the  Canton  itself,  the  executive 
power  is  exercised  by  a  Board,  a  communal  or  municipal  coun- 
cil. Legislative  and  consultative  power  rests,  in  all  but  the 
Romance  Cantons,  with  a  general  assembly  of  the  people  {Ge- 
meindeversammlung).  In  the  Romance  Cantons  the  people  del- 
egate their  functions,  by  election,  to  a  large  Committee  or  Gen- 
eral Council.  In  all  the  Cantons  alike  the  executive  body  — 
the  communal  or  municipal  council  —  is  elected  by  the  people 
or  their  representatives,  the  Committee  of  the  Romance  Can- 
tons. The  president  of  the  executive  council  (who  is  also 
sometimes  called  Hauptmann,  sometimes  Syndic)  often  exer- 
cises some  functions  separately  from  the  Council ;  but,  as  a  rule, 
all  executive  action  is  collegiate. 

As  an  area  of  general  state  administration  the  Commune  serves  as  a& 
electorial  district,  as  a  voting  district  for  the  Referendum,  etc. 

The  Federal  Government. 

527.  The  Federal  Executive.  — In  no  feature  of  the  federal 

organization  is  the  influence  of  cantonal  example  more  evident 
than  in  the  collegiate  character  of  the  Executive.  The  execu- 
tive power  of  the  Confederation,  like  the  executive  power  of 
each  Canton,  is  vested  not  in  a  single  person,  as  under  monarch- 
ical or  presidential  government,  but  in  a  board  of  persons. 
Nor  does  Swiss  jealousy  of  a  too  concentrated  executive  author- 


THE  GOVERNMENTS  OF  SWITZERLAND. 


315 


ity  satisfy  itself  with  thus  putting  that  authority  '  in  commis- 
sion ' :  it  also  limits  it  by  giving  to  the  legislative  branch  of 
the  government,  both  in  the  Cantons  and  in  the  federal  system, 
an  authority  of  correction  as  regards  executive  acts  such  as  no 
other  country  has  known.  The  share  of  the  legislative  branch 
in  administrative  affairs  is  smaller,  indeed,  under  the  federaJ 
Constitution  than  under  the  laws  of  the  Cantons  ;  but  it  is  large 
even  in  the  federal  system,  and  it  has  required  a  long  fight  be- 
tween the  friends  and  the  opponents  of  effective  central  gov- 
ernment to  bring  the  federal  executive  to  even  its  present 
degree  of  independence  and  efficiency. 

528.  The  executive  commission  of  the  Confederation  is  known 
as  the  Federal  Council  (Bandesrath).  It  consists  of  seven 
members  elected  for  a  term  of  three  years  by  the  two  houses 
of  the  federal  legislature  acting  together  in  joint  session  as 
a  Federal  Assembly  {Bundesversammlung) .  The  Constitution 
forbids  the  choice  of  two  of  the  seven  from  one  and  the  same 
Canton :  they  must  represent  seven  of  the  twenty-two  Cantons. 
The  Council  organizes  under  a  President  and  Vice-President 
chosen  by  the  Federal  Assembly  from  among  the  seven  coun- 
cillors, to  serve  for  a  term  of  one  year,  the  Constitution  insist- 
ing upon  the  extreme  democratic  doctrine  of  rotation.  Xeither 
President  nor  Vice-President  can  fill  the  same  office  for  two  con- 
secutive terms;  nor  can  the  President  be  immediately  nominated 
to  the  office  of  Vice-President  again  upon  the  expiration  of  his 
term.  There  is  nothing  to  prevent  the  Vice-President  succeed- 
ing the  President,  however ;  and  it  has  hitherto  been  the  uni- 
form practice  to  follow  this  natural  and  proper  line  of  promo- 
tion. 

The  Federal  Assembly  may  elect  to  the  Council  any  Swiss  citizen 
who  is  eligible  to  either  Chamber  of  the  Legislature.  It  may  even 
choose  members  of  the  Chambers,  though  an  election  to  a  place  in  the 
executive  body  necessitates  a  resignation  of  the  legislative  function. 

529.  The  choice  of  the  Federal  Assembly  in  constituting  the  execu- 
tive has  hitherto  been  admirably  conservative.  Some  of  the  more  prom- 
inent members  of  the  Council  have  been  retained  upon  it  by  repeated 


316  THE  GOVERNMENTS  OF  SWITZERLAND. 


re-election  for  fifteen  or  sixteen  years.  Only  twice,  indeed,  since  1848, 
have  members  who  wished  re-election  been  refused  it.i 

530.  The  Federal  Assembly  of  course  fills  all  vacancies  in  the  mem- 
bership of  the  Council. 

531.  The  three-years  term  of  the  Council  is  coincident  with  the 
three-years  term  of  the  National  Council,  the  popular  branch  of  the 
Legislature.  At  the  beginning  of  each  triennial  term  of  this  lower 
House,  the  two  Houses  come  together  as  a  Federal  Assembly  and  elect 
the  Federal  Council. 

532.  The  precedence  of  the  President  of  the  Council  is  a 
merely  formal  precedence :  he  is  in  no  sense  the  Chief  Executive. 
He  represents  the  Council  in  receiving  the  representatives  of 
foreign  powers ;  he  enjoys  a  somewhat  enhanced  dignity,  being 
addressed  in  diplomatic  intercourse  as  '  His  Excellency ' ;  and 
he  receives  a  little  larger  salary  than  his  colleagues  receive. 

533.  The  Executive  and  the  Legislature.  —  The  members 
of  the  Federal  Council,  though  they  may  not  be  at  the  same 
time  members  of  either  House  of  the  Legislature,  may  attend 
the  sessions  of  either  House,  may  freely  take  part  in  debate, 
and  may  introduce  proposals  concerning  subjects  imder  consid- 
eration :  may  exercise  most  of  the  privileges  of  membership, 
except  the  right  to  make  new  motions  and  the  right  to  vote. 
They  thus  to  a  certain  extent  occupy  a  position  resembling  that 
which  a  French  or  English  ministry  occupy ;  but  there  is  this 
all-important  difference :  the  English  or  French  ministers  are 
subject  to  'parliamentary  responsibility,'  —  must  resign,  that 
is,  whenever  any  important  measure  which  they  favor  is  de- 
feated; whereas  the  Swiss  ministers  are  subject  to  no  such 
responsibility.  Defeat  in  the  Legislature  does  not  at  all  affect 
their  tenure.  They  hold  office  for  a  term  of  years,  not  for  a 
term  of  legislative  success. 

There  have  been  two  cases  since  the  establishment  of  the  Council 
in  1848, — two  cases,  that  is,  in  forty  years,  —  of  resignation  from  the 
Council  on  the  ground  of  disagreement  in  political  opinion,  —  but  two 
only.2 

1  Westminster  Review,  Vol.  129,  p.  207.  2 


THE  GOVERNMENTS  OF  SWITZERLAND.  317 


534.  The  Executive  Departments.  —  The  Council  acts  as  a 
body  of  Ministers.  It  was  the  purpose  of  the  Constitution 
that  all  executive  business  should  be  handled  by  the  Council  as 
a  whole,  but  of  course  such  collegiate  action  has  proved  prac- 
tically impossible :  it  has  been  necessary  to  divide  the  work 
among  seven  Departments.  Each  member  of  the  Council  pre- 
sides over  a  Department,  conducting  it  much  as  an  ordinary 
minister  would  under  a  Cabinet  system,  though  there  is  a 
somewhat  closer  union  of  the  several  Departments  than  charac- 
terizes other  systems,  and  a  greater  degree  of  control  by  the 
ministers  over  such  details  of  administration  as  the  ^perma- 
nent '  subordinates  of  Cabinet  ministers  generally  manage,  by 
virtue  of  possession,  to  keep  in  their  own  hands,  to  the  restraint 
and  government  of  transient  political  chiefs.  All  important 
decisions  emanate  from  the  Council  as  a  whole  ;  and,  so  far  as 
is  practicable,  the  collegiate  action  contemplated  by  the  Con- 
stitution is  adopted. 

The  seven  Departments,  as  organized  by  a  law  taking  effect  Jan.  1, 
1888,  are  (1)  of  Foreign  Affairs,  (2)  of  Justice  and  Police,  (3)  of  the 
Interior,  (4)  of  War,  (5)  of  Finance  and  Imposts,  (6)  of  Industry  and 
Agriculture,  and  (7)  of  Posts  and  Railways.  The  department  of  Foreign 
Affairs  is  now  separated  from  the  presidency,  with  which  it  was  formerly 
always  associated,  so  that  greater  continuity  of  policy  is  now  possible 
in  all  departments.! 

The  arrangement  of  administrative  business  in  Departments  is  ef- 
fected in  Switzerland,  not  as  in  France  and  Germany,  by  executive 
decree,  but  by  legislative  enactment,  as  in  the  United  States. 

535.  It  is  considered  the  capital  defect  of  this  collegiate  organization 
of  the  Swiss  executive,  combined  as  it  is  with  the  somewhat  antagonistic 
arrangement  of  a  division  of  executive  business  among  departments, 
that  it  compels  the  members  of  the  Council  to  exercise  at  one  and  the 
same  time  two  largely  inconsistent  functions.  They  are  real,  not  simply 
nominal,  heads  of  departments  in  Swiss  practice,  and  are  obliged  as 
such  to  give  their  time  and  attention  to  the  routine,  the  detail,  and  the 
technical  niceties  of  administration ;  and  yet  as  a  body  they  are  expected 
to  impart  to  the  administration  as  a  whole  that  uniformity,  breadth,  and 

1  See  Hiltz,  PoUtisches  Jahrbuch  der  Schweiz,  1887,  p.  778. 


318  THE  GOVERNMENTS  OF  SWITZERLAND. 


flexibility  of  policy  that  can  be  imparted  only  by  those  who  stand  aloof 
from  detail  and  routine  and  command  the  wider  views  of  general  ex- 
pediency. They  are  called  to  be  both  technical  officials  and  political 
guides.  It  has  been  suggested  by  thoughtful  Swiss  publicists  that  it 
would  be  vastly  better  to  give  the  departments  permanent  heads  and 
leave  to  a  board  of  ministers  such  as  the  present  Council  only  a  general 
oversight.  Political  and  administrative  functions  require  difEerent 
aptitudes,  must  be  approached  from  very  different  points  of  view,  and 
ought  never  to  be  united  in  the  same  persons.^ 

536.  Mixed  Functions  of  the  Executive.  — Swiss  law,  as  I 
have  said,  makes  no  very  careful  distinctions  between  executive, 
legislative,  and  judicial  functions.  Popular  jealousy  of  execu- 
tive power  has  resulted,  alike  in  the  cantonal  systems  and  in 
the  system  of  the  Confederation,  in  the  vesting  of  many  execu- 
tive functions  either  wholly  or  in  part  in  the  law-making  bodies ; 
and  a  very  singular  confusion  between  executive  and  judicial 
functions  has  issued  in  the  possession  by  both  the  executive 
and  the  legislative  bodies  of  prerogatives  which  should,  on  any 
strict  classification,  belong  only  to  regularly  constituted  courts 
of  law.  It  is,  consequently,  somewhat  di£B.cult  to  get  a  clear 
summary  view  of  the  rdle  played  in  Swiss  federal  affairs  by 
the  central  executive  Council.  Its  duties  give  it  a  touch  both 
of  legislative  and  of  judicial  quality. 

537.  (1)  It  stands  closely  connected  with  the  Legislature 
because  of  its  part  in  shaping  legislation.  The  Council  both 
originates  in  the  Houses  proposals  with  reference  to  pending 
questions  and  gives  its  opinion  upon  proposals  referred  to  it, 
either  by  the  Houses  or  by  the  Cantons.  In  connection  with 
annual  reports  to  the  Houses  concerning  its  conduct  of  adminis- 
tration and  the  condition  of  the  Confederation,  it  urges  upon 
them  necessary  measures  of  reform  or  amelioration.  It  pre- 
sents the  budget  of  the  Confederation  also  to  the  Houses  and 
leads  in  its  debates  of  financial  legislation.    It  is,  in  brief,  the 

1  Orelli,  Das  Staatsrecht  der  Schweizerischen  Eidgenossenschaft  (^Handbuch), 
p.  36. 


THE  GOVERNMENTS  OF  SWITZERLAND. 


319 


intimate  servant  and  in  part  the  authoritative  guide  of  the 
Legislature. 

538.  (2)  In  the  exercise  of  several  of  its  most  important 
duties  the  action  of  the  Council  is  essentially  judicial.  It  is 
empowered  to  examine  the  agreements  made  by  Cantons  among 
themselves  or  with  foreign  governments  and  to  judge  of  their 
conformity  with  federal  constitutional  law,  withholding  its  ap- 
proval at  its  discretion.  In  like  manner  there  are  other  can- 
tonal laws  and  ordinances  whose  validity  is  made  dependent 
upon  its  approval ;  and  to  a  very  limited  extent,  a  jurisdiction 
like  that  entrusted  to  the  Federal  Court  in  hearing  complaints 
concerning  breaches  of  federal  law  is  given  it. 

Here  are  some  of  the  topics  touching  which  the  authoritative  opinion 
of  the  Council  may  be  taken :  Cantonal  school  affairs ;  freedom  of 
trade  and  commerce,  and  the  interpretation  of  contracts  with  foreign 
states  which  concern  trade  and  customs-levies,  patent  rights,  rights  of 
settlement,  freedom  from  military  service,  free  passage,  etc. ;  rights  of 
settlement  within  the  Cantons ;  freedom  of  belief ;  validity  of  cantonal 
elections,  votes,  etc. ;  gratuitous  equipment  of  the  militia.^ 

539.  (3)  Its  strictly  executive  functions  are,  however,  of 
course  its  most  prominent  and  important  functions.  It  ap- 
points all  officers  whose  selection  is  not  otherwise  specially 
provided  for  by  law  ;  it  of  course  directs  the  whole  executive 
action  of  the  government,  overseeing  all  federal  officials,  con- 
trolling federal  finance,  and  caring  for  all  federal  interests  ; 
equally  of  course,  it  manages  the  foreign  affairs  of  the  Con- 
federation. Besides  these  usual  executive  and  administrative 
functions,  it  exercises,  however,  others  less  common.  It.  is  the 
instrument  of  the  Constitution  in  making  good  to  the  Cantons 
the  federal  guarantee  of  their  constitutions.  It  executes  the 
judgments  of  the  Federal  Court,  and  also  all  agreements  or 
decisions  of  arbitrators  concerning  matters  in  dispute  between 
Cantons.-  In  cases  of  necessity  it  may  call  out  and  itself  direct 


1  Orelli,  pp.  43,  44. 


2  Ihid,,  p:  34. 


320  THE  GOVERNMENTS  OF  SWITZERLAND. 

the  movements  of  sucli  cantonal  troops  as  are  necessary  to 
meet  any  sudden  danger,  provided  the  Legislature  is  not  in 
session  to  command  such  measures,  and  provided  the  call  is 
for  not  more  than  two  thousand  men  or  for  a  service  of  more 
than  three  weeks.  If  more  men  or  longer  service  seem  neces- 
sary, the  Legislature  must  be  called  at  once  and  its  sanction 
obtained.  This  power  of  the  Council  to  call  out  troops  to  meet 
a  pressing  peril  of  war  or  riotous  disorder  is  a  logical  part  of 
the  general  duty  which  is  imposed  upon  it  of  guarding  both 
the  external  and  the  internal  safety  and  order  of  the  Confeder- 
ation, a  duty  which  embraces  the  general  police  function  of 
keeping  the  peace. 

540.  The  Army.  —  The  Confederation  can  maintain  no  standing 
army ;  only  the  Cantons  can  maintain  troops  in  time  of  peace ;  and  even 
they  cannot  keep  more  than  three  hundred  men  apiece  without  the  con- 
sent of  the  Confederation. 

541.  Preservation  of  Internal  Order.  —  The  rule  that  it  is  the 
province,  not  of  the  Cantons,  but  of  the  federal  government  to  preserve 
the  internal  order  as  well  as  secure  the  external  safety  of  the  Confed- 
eration is  very  absolutely  held.  The  Cantons  may  not  even  suppress 
disorder  themselves ;  they  must  call  upon  the  federal  authorities,  who 
must  intervene.  If  the  case  be  urgent,  a  Canton  may  call  in  the  help 
of  a  neighbor  Canton.  If  the  cantonal  authorities  most  immediately 
concerned  cannot  act  at  all,  the  federal  authorities  must  themselves 
take  the  initiative.  There  would  seem  to  be  no  case  contemplated  in 
which  a  Canton  might  take  the  responsibility  of  acting  alone  and  for 
itself.  There  must  be  some  form  of  inter-cantonal  co-operation :  more 
than  one  Canton  must  agree  to  the  propriety  of  employing  force. 

542.  Extradition.  — The  most  common  subject  of  those  agreements 
between  Cantons  which  it  is  the  duty  of  the  federal  authorities  to  enforce 
is  Extradition.  But  such  conventions  do  not  either  in  Switzerland  or 
in  Germany  (where  Swiss  example  in  this  matter  is  followed)  include 
either  political  or  press  offences  among  the  extraditable  crimes. 

543.  Appeal  in  Judicial  Cases.  —  Following  the  example 
of  the  cantonal  constitutions,  which  provide  for  a  very  abso- 
lute dependence  of  the  executive  u])on  the  representatives  of 
the  people  and  freely  neglect,  in  practice,  the  careful  differen- 


THE  GOVERNMENTS  OF  SWITZERLAND.  321 


tiation  of  legislative  from  administrative  functions,  the  federal 
Constitution  of  1848  allowed  an  appeal  in  all  cases  from  the 
Federal  Council  to  the  Federal  Assembly  {Bundesversamm- 
lung)}  The  constitutional  revision  of  1874,  which  had  as  one 
of  its  chief  objects  the  development  and  strengthening  of  the 
judiciary  of  the  Confederation,  transferred  such  appeals  to  a 
Federal  Court,  but  did  not  at  all  restrict  the  right  of  appeal. 
It  transformed  the  confusion  hitherto  existing  between  legisla- 
tive and  executive  functions  into  a  new  confusion  of  executive 
with  judicial  functions.  ISTor  was  the  legislative  branch  even 
then  entirely  excluded  from  judicial  action.  It  was  provided 
that  the  Federal  Court  should  hear  appeals  from  the  Federal 
Council,  but  it  was  also  arranged  that  certain  '  administrative ' 
cases  might  be  reserved  to  the  Assembly  by  special  legislative 
action.  Religious  and  'confessional'  questions  have,  accord- 
ingly, been  retained  by  the  Legislature  —  questions  which 
would  seem  to  be  as  far  as  possible  removed  from  the  character 
of  administrative  matters. 

544.  It  seems  to  have  been  the  conscious  purpose  of  the  more 
advanced  reformers  in  1874,  to  bring  the  Federal  Court  as  near  as  pos- 
sible in  character  and  functions  to  the  Supreme  Court  of  the  United 
States ;  but  they  were  able  to  realize  their  purpose  only  in  part.  The 
most  important  prerogative  of  our  own  Court,  its  powers,  namely,  of 
constitutional  interpretation,  was  denied  the  Federal  Court  in  Switzer- 
land. Most  constitutional  questions  are  decided  by  the  Legislature, 
except  when  specially  delegated  to  the  Court  by  legislation.  The 
chief  questions  of  this  nature  now  taken  cognizance  of  by  the  Court 
are  disputes  as  to  constitutional  rights  between  cantonal  and  federal 
authorities. 

545.  The  Federal  Chancellor.  —  The  office  of  Federal  Chan- 
cellor is  an  inheritance  of  the  present  from  the  older  Confed- 
eration, in  whose  days  of  incomplete  federalization  the  Chan- 

1  There  was  a  decided  disposition  on  the  part  of  the  constitution-makers 
of  1848,  in  Switzerland,  because  of  a  prevalent  dread  of  creating  too  strong 
a  central  executive,  to  restrict  the  federal  Executive  even  beyond  Canto- 
nal precedent. 


322  THE  GOVEKmiENTS  OF  SWITZERLAND. 


cellor  typified  the  unity  of  the  Cantons.  The  Chancellor  is 
elected  by  the  Federal  Assembly  at  the  same  time  and  for  the 
same  term  (three  years)  as  the  Federal  Council.  He  acts  as 
Secretary  of  the  National  Council  {Nationalrath) ,  is  keeper 
of  all  the  federal  records,  and  exercises  a  semi-executive  func- 
tion as  preserver  of  diplomatic  forms  and  usages.  There  is 
also  a  yice-Chancellor  who  serves  as  Secretary  of  the  Council 
of  States  (Stdnderath) . 

546.  The  Federal  Legislature.  —  Properly  speaking  the 
legislative  powers  of  the  Confederation  are  vested  in  the  Federal 
Assembly ;  but  that  Assembly  consists  of  two  distinct  Houses, 
the  National  Council  and  the  Council  of  States,  and  these  two 
Houses  act  separately  in  all  strictly  legislative  matters,  coming 
together  as  a  single  Assembly  only  for  the  exercise  of  certain 
electoral  and  judicial  functions.  The  two  Houses  stand  in  all 
respects  upon  an  equal  footing  as  regards  all  subjects  of  legis- 
lation, and  divide  the  work  of  each  session,  —  that  is  the 
originating  of  measures  with  regard  to  the  questions  to  come 
before  them,  — by  a  conference  of  their  Presidents  at  the  begin- 
ning of  the  session.  Sessions  of  the  Houses  are  required  by 
the  Constitution  to  be  held  annually :  as  a  matter  of  practice 
they  are  held  oftener.  There  are  usually  two  sessions  of  con- 
siderable length  every  year,  one  beginning  in  June,  the  other 
in  December;  and  extra  sessions  are  resorted  to  whenever 
the  state  of  the  public  business  requires.  Such  special  sessions 
may  be  called  either  by  resolution  of  the  Federal  Council  or 
upon  the  demand  of  five  cantons  or  of  one-fourth  of  the  mem- 
bers of  the  National  Council.  An  absolute  majority  of  its 
members  constitutes  a  quorum  in  each  House. 

547.  Composition  of  the  Houses :  I.  The  National  Council. 
—  The  popular  chamber  of  the  Assembly  consists  of  one  hun- 
dred and  fortj'-five  members  chosen  from  forty-nine  federal 
electoral  districts  (  Walil-Kreise)  in  the  proportion  of  one  rep- 
resentative for  every  20,000  inhabitants.  The  federal  electoral 
districts  cannot,  however,  cross  cantonal  boundary  lines  and 


THE  GOVERNMENTS  OF  SWITZERLAND. 


328 


include  territory  in  more  than  one  Canton.  If,  therefore,  in 
the  apportionment  of  representatives  among  the  Cantons,  the 
division  of  the  number  of  inhabitants  of  any  Canton  by  the 
number  20,000  shows  a  balance  of  10,000,  or  more,  that  balance 
counts  as  20,000,  and  entitles  to  an  additional  representative. 
Keappointments  are  made  from  time  to  time  to  meet  changes 
in  the  number  of  inhabitants  as  shown  by  decennial  censuses. 
If  any  Canton  have  less  than  20,000  inhabitants,  it  is,  never- 
theless, entitled  to  a  representative. 

This  is  the  case  with  the  three  so-called  half-cantons,  Obwalden, 
Nidwalden,  and  Inner  Appenzell.  The  other  Cantons  which  have  only- 
one  representative  are  Uri,  with  23,744  inhabitants,  and  Zug,  with 
22,829.  Bern,  on  the  other  hand,  which  has  530,411  inhabitants,  has 
twenty-seven  representatives,  and  Ziirich,  with  316,074,  sixteen,  while 
one  other,  Vaud,  has  twelve,  and  two,  St,  Gallen  and  Graubiinden,  have 
ten  each. 

548.  In  those  electoral  districts  which  send  more  than  one  representa- 
tive —  as  for  instance,  in  Bern,  whose  twenty-seven  members  are  sent 
from  six  districts,  —  candidates  are  voted  for  upon  a  general  ticket, 
each  voter  being  entitled  to  vote  for  as  many  representatives  as  the 
district  returns  (sec.  315). 

549.  Every  Swiss  twenty  years  of  age  who  is  not  a  clergy- 
man and  who  is  qualified  to  vote  by  the  law  of  his  Canton  may 
vote  for  members  of  the  National  Council.  The  term  of  the 
National  Council  is  three  years.  Elections  take  place  always 
in  October,  on  the  same  day  throughout  the  country  —  and 
that  day  is  always  a  Sunday. 

550.  It  is  upon  the  assembling  of  each  new  National  Council  that  the 
election  of  the  Federal  Council  takes  place  (sees.  528-531).  The  three- 
years  term  of  the  executive  Council  is  thus  made  to  extend  from  the 
beginning  of  the  first  session  of  one  National  Council  to  the  beginning 
of  the  first  session  of  the  next. 

551.  The  National  Council  elects  its  own  officers ;  but  in  selecting 
its  President  and  Vice-President  it  is  bound  by  a  rule  similar  to  that 
which  limits  the  choice  of  the  Federal  Council  in  its  yearly  election  of 
a  presiding  officer.  No  one  who  has  been  President  during  a  regular 
session  can  be  either  President  or  Vice-President  during  the  session 


324 


THE  GOVERNISIENTS  OF  SWITZERLAND. 


next  following;  nor  can  any  one  be  Vice-President  twice  in  succession. 
For  the  officers  of  the  National  Assembly,  like  the  officers  of  most 
European  law-making  bodies,  are  elected  every  session  instead  of  for 
the  whole  term  of  the  body,  as  in  our  House  of  Representatires  and 
the  English  House  of  Commons. 

552.  II.  The  Council  of  States  (Stdnderath)  is  composed  of 
forty-four  members  :  two  from  each  of  the  twenty-two  Cantons. 
It  would  thus  seem  to  resemble  very  closely  in  its  composition 
our  own  federal  Senate  and  to  represent  distinctively  the  fed- 
eral feature  of  the  union  between  the  Cantons.  In  fact,  how- 
ever, it  has  no  such  clearly  defined  character:  for  the  mode 
in  which  its  members  shall  be  elected,  the  qualifications  which 
they  shall  possess,  the  length  of  time  Avhich  they  shaU  serve, 
the  salary  which  they  shall  receive,  and  the  relations  they 
shall  bear  to  those  whom  they  represent,  in  brief,  every  ele- 
ment of  their  character  as  representatives,  is  left  to  the  deter- 
mination of  the  Cantons  themselves,  and  the  greatest  variety 
of  provisions  consequently  prevails.  From  some  Cantons  the 
members  are  sent  for  one  year  only ;  by  some  for  three ;  by 
others  for  two.  In  the  Cantons  which  have  the  obligatory 
referendum  they  are  elected  by  popular  vote,  as  the  members 
of  the  National  Council  are ;  in  those  which  have  representa- 
tive institutions  they  are  elected  by  the  legislative  body  of 
the  Canton.  Differing,  thus,  from  the  National  Council,  as 
regards  at  least  very  many  of  its  members,  only  in  the  fact 
that  every  Canton  sends  the  same  number  as  each  of  the  others 
and  chooses  the  term  for  which  it  shall  elect,  the  Council  of 
States  can  hardly  be  called  the  federal  chamber :  neither  is  it 
merely  a  second  chamber.  Its  position  is  anomalous  and  obvi- 
ously transitional. 

553.  The  Council  of  States  elects  its  own  President  and  Vice- 
President,  but  under  the  restriction  that  neither  President  nor  Vice- 
President  can  be  chosen  at  any  session  from  the  Canton  from  which 
the  President  for  the  immediately  preceding  session  was  taken,  and  that 
the  office  of  Vice-President  cannot  be  filled  during  two  successive  reg- 
ular sessions  by  a  member  from  the  same  Canton. 


THE  GOVERNMENTS  OF  SWITZERLAND. 


825 


554.  The  Cantons,  upon  enumeration,  number,  not  twenty-two,  but 
twenty -five,  because  three  of  them  have  been  divided  into  '  half- 
cantons,'  namely,  Unterwalden,  Basel,  and  Appenzell.  The  half-cantons 
send  each  one  member  to  the  Council  of  States.  The  following  is  a 
list  of  the  Cantons:  Zurich,  Bern,  Luzern,  Uri,  Schwyz,  Obwalden, 
Nidwalden,  Glarus,  Zug,  Freiburg,  Solothurn,  Baselstadt,  Baselland, 
Schaffhausen,  Outer  Appenzell,  Inner  Appenzell,  St.  Gallen,  Graubiin- 
den,  Aargau,  Thurgau,  Ticino,  Vaud,  Valais,  Neuchatel,  Geneva. 


555.  Functions  of  the  Houses.  —  It  may  be  said,  in  general 
terms,  that  its  Legislature  is  the  supreme,  the  directing  organ 
of  the  Confederation.  It  is  difficult,  therefore,  to  classify  the 
functions  which  the  Houses  exercise,  because  they  extend  into 
every  field  of  government;  but  the  following  may  serve  as 
a  distinct  arrangement  of  them  :  1.  They  exercise  the  sover- 
eignty of  the  Confederation  in  its  dealings  with  foreign  states, 
controlling  all  alliances  or  treaties  with  foreign  powers,  deter- 
mining questions  of  peace  and  war,  passing  all  enactments 
concerning  the  federal  army,  and  taking  the  necessary  meas- 
ures for  maintaining  the  neutrality  and  external  safety  of 
Switzerland.  2.  They  maintain  the  authority  of  the  Confed- 
eration as  against  the  Cantons,  taking  care  to  pass  all  the 
measures  necessary  for  preserving  internal  safety  and  order 
and  for  fulfilling  the  federal  guarantee  of  the  cantonal  consti- 
tutions, and  deciding,  upon  appeal  from  the  Federal  Council, 
the  validity  of  agreements  between  the  Cantons  or  between  a 
Canton  and  a  foreign  power.  3.  They  exercise  the  general 
legislative  powers  of  the  Confederation,  providing  for  the  car- 
rying out  of  the  federal  Constitution  and  for  the  fulfilment  of 
all  federal  obligations.  4.  They  pass  upon  the  federal  budget 
and  control  the  federal  finances.  5.  They  organize  the  federal 
service,  providing  for  the  creation  of  all  necessary  departments 
or  offices  and  for  the  appointment  and  pay  of  all  federal  offi- 
cers. 6.  They  oversee  federal  administrative  and  judicial 
action,  hearing  and  acting  upon  complaints  against  the  decis- 
ions of  the  Federal  Council  in  contested  administrative  cases. 


326  THE  GOVERlJMENTS  OF  SWITZERLAND. 

7.  With,  the  concurrence  of  the  people,  they  revise  the  federal 
Constitution. 

556.  Revision  of  the  Constitution.  —  TThen  the  two  Houses 
can  agree  concerning  a  revision  of  the  Constitution,  it  is  effected 
by  the  ordinary  processes,  under  the  ordinary  rules,  of  legisla- 
tion, though  it  is  followed  by  an  obligatory  Referendum  to 
the  people.  But  a  revision  may  also  be  otherwise  accomplished. 
If  one  House  demands  particular  changes  and  the  other  House 
refuses  to  assent,  or  if  50,000  qualified  voters  call  for  a  revis- 
ion by  petition,  the  question  whether  or  not  a  revision  shall 
be  undertaken  must  be  submitted  to  popular  vote  ;  and  if  there 
be  a  majority  of  the  whole  of  such  popular  vote  in  the  affirma- 
tive, new  Houses  must  be  elected  and  the  revision  proceeded 
with.  In  every  case  the  amendments  adopted  by  the  Houses 
must  be  voted  upon  by  the  people  and  must  be  accepted  by  a 
majority  of  the  people  and  by  a  majority  of  the  Cantons  in 
order  to  go  into  force.  In  reckoning  up  the  votes  by  Cantons, 
on  such  occasions,  the  vote  of  a  half-canton  counts  as  half  a 
vote. 

557.  The  Federal  Referendum.  —  Federal  laws,  as  well  as 
generally  binding  federal  resolutions,  which  are  not  of  a  press- 
ing nature,  shall  be  laid  before  the  people  for  their  acceptance 
or  rejection  upon  the  demand  of  30,000  qualified  Swiss  citizens 
or  of  eight  cantons."  Such  is  the  language  of  Article  89  of 
the  federal  Constitution  which  establishes  for  the  Confedera- 
tion the  'facultative'  Referendum^  (sec.  521). 

The  whole  detail  of  the  exercise  of  the  Referendum  is  regulated  by- 
federal  legislation.  A  period  of  ninety  days,  running  from  the  date  of 
the  publication  of  the  law,  is  set  within  which  the  demand  for  a  popular 
vote  must  be  made.  Copies  of  all  federal  laws  which  are  subject  to 
Referendum  are  sent  to  the  authorities  of  each  Canton,  and  by  them 
published  in  the  Communes,  For  the  Communes  are  constituted  the 
districts  in  which  the  popular  demand  is  to  be  made  up.  That  demand 
must  be  made  by  written  petition  addressed  to  the  Federal  Council ;  all 


1  OrelU,  p.  80. 


THE  GOVERNMENTS  OF  SWITZERLAND. 


327 


signatures  must  be  autographic ;  and  the  chief  oflBcer  of  the  Commune 
must  attest  the  right  of  each  signer  to  vote.  Demands  from  Cantons 
for  the  Referendum  are  made  through  the  cantonal  councils,  subject  to 
the  right  of  the  people,  under  the  provisions  of  the  cantonal  referendum, 
to  reverse  the  action. 

In  case  it  appears  that  30,000  voters  or  eight  Cantons  demand  the 
Beferendum,  the  Federal  Council  must  set  a  day  for  the  popular  vote : 
a  day  which  must  be  at  least  four  weeks  later  than  the  resolution  which 
appoints  it. 

558.  Functions  of  the  Federal  Assembly.  —  The  functions 
which  the  Houses  exercise  in  joint  session  as  the  Federal 
Assembly  are  not  legislative  but  electoral  and  judicial.  1.  The 
Assembly  elects  the  Federal  Council,  the  federal  judges,  the 
Chancellor,  and  the  generals  of  the  confederate  arm}'.  2.  It 
exercises  the  right  of  pardon.  3.  It  determines  conflicts  of 
jurisdiction  between  federal  authorities,  fulfilling  the  func- 
tions delegated  under  the  French  and  Prussian  constitutions 
to  a  special  Court  of  Conflicts  (sees.  357,  502). 

The  President  of  the  National  Council  presides  over  the  sessions  of 
the  Federal  Assembly,  and  the  rules  of  the  National  Council  for  the 
most  part  govern  its  proceedings. 

559.  Administration  of  Justice :  I.  The  Cantonal  Courts. 

—  The  Cantons  are  left  quite  free  by  the  federal  Constitution 
to  organize  their  courts  as  they  please.  Xot  even  a  general 
uniformity  of  system  is  prescribed  as  in  Germany  (sec.  436)  ; 
nor  are  the  cantonal  courts  subordinated  to  the  Federal  Court 
except  in  certain  special  cases  provided  for  by  statute.  It  may 
be  said,  in  general  terms,  that  justice  is  administered  by  the 
Cantons,  with  recourse  in  selected  cases  to  the  tribunal  of  the 
Confederation. 

There  is,  however,  a  certain  amount  of  uniformity  in  judi- 
cial organization  throughout  Switzerland.  There  are  usually 
two  ranks  of  courts  in  each  Canton :  District  Courts  (Bezirksge- 
richte  or  Amtsgerichte)  which  are  courts  of  first  instance,  and 
a  Supreme  or  Appellate  Court  (Obergerkht  or  AppeUationsge- 


328 


THE  GOVERNMENTS  OF  SWITZERLAND. 


Hcht)  which  is  the  court  of  final  instance.  There  are  also  in 
some  of  the  Cantons  Justices  of  the  Peace.  Petty  police  cases 
are  heard  by  the  District  Courts  subject  to  appeal  to  the 
Supreme  Court,  just  as  civil  cases  are ;  but  for  the  hearing  of 
criminal  cases  there  is  trial  by  jury  under  the  presidency  of  a 
section  of  the  supreme  court  justices,  or  by  a  special  criminal 
court  acting  without  a  jury. 

560.  In  three  of  the  larger  cantons,  Geneva,  Zurich,  and  St.  Gallen, 
there  are  special  Cassation  Courts  put  above  the  Obergericht.  Ziirich 
and  Geneva  have  also  special  Commercial  Courts  {Hajidelsyeridde) . 

561.  In  many  of  the  cantons  the  Supreme  Court  exercises  certain 
semi-executive  functions,  taking  the  place  of  a  Ministry  of  Justice  in 
overseeing  the  action  of  the  lower  courts  and  of  all  judicial  ofl&cers, 
such  as  the  states-attorneys. 

562.  In  most  of  the  cantons,  too,  the  Supreme  Court  makes  annual 
reports  to  the  legislative  Council,  containing  a  full  review  of  the  judi- 
cial business  of  each  year,  discussing  the  state  of  justice  with  criticisms 
upon  the  system  in  vogue  and  suggestions  of  reform.  These  reports 
are  important  sources  of  judicial  statistics. 

563.  The  terms  of  cantonal  judges  vary.  The  usual  terms 
are  three,  four,  and  six  years.  The  judges  of  the  inferior 
courts  are  as  a  rule  elected  directly  by  the  people :  those  of 
the  supreme  courts  commonly  by  the  legislative  Council. 

564.  In  Berne  the  legislative  Council  also  elects  the  Presidents  of 
the  District  Courts ;  but  this  is  not  the  usual  practice. 

565.  No  qualifications  for  election  to  the  bench  are  required  by  Swiss 
law  except  only  the  right  to  vote.  But  here,  as  well  as  in  regard  to 
the  very  brief  terms  of  the  judges,  practice  is  more  conservative  than 
the  law.  To  the  higher  courts,  at  least,  competent  lawyers  are  gener- 
ally elected;  and  re-election  is  in  most  cases  the  rule. 

566.  In  Geneva  the  States-attorney,  instead  of  the  Supreme  Court, 
is  given  the  general  duties  of  superintendence  which,  outside  of  Switzer- 
land, are  vested  in  a  Minister  of  Justice ;  and  in  other  cantons  similar 
officers  are  given  prerogatives  much  more  extensive  than  are  usually 
associated  with  such  offices  elsewhere. 

567.  II.  The  Federal  Court. —  The  Federal  Court  was 
created  by  the  Constitution  of  1848.    Before  that  time  arbitra- 


THE  GOVERNMENTS  OF  SWITZERLAND.  329 

tion  had  been  the  only  form  of  adjudication  between  the  Can- 
tons. Even  in  creating  it,  however,  the  Constitution  of  1848 
withheld  from  the  Federal  Court  all  real  efficacy :  its  jurisdic- 
tion was  of  the  most  restricted  kind  and  was  condemned  to  be 
exercised  under  the  active  superintendence  of  the  then  omnip- 
otent Federal  Assembly.  It  was  one  of  the  chief  services  of 
the  constitutional  reform  of  1874  that  it  elevated  the  Federal 
Court  to  a  place  of  substantial  influence  and  real  dignity.  It 
still  rests  with  the  Houses  to  determine  by  statute  the  par- 
ticular questions  which  shall  be  submitted  to  the  Court ;  but 
its  general  province,  as  well  as  its  organization,  is  prescribed 
by  the  Constitution.  Doubtless  the  Federal  Court,  like  the 
Council  of  States,  is  still  in  a  transitional  stage,  and  will 
ultimately  be  given  a  still  more  independent  and  influential 
position. 

568.  The  Federal  Court  consists  of  nine  judges  chosen  by  the 
Federal  Assembly  (with  due  regard  to  the  representation  of 
the  three  official  languages  of  Switzerland,  —  German,  French, 
and  Italian)  for  a  term  of  six  3'ears.  Every  two  years,  also, 
the  Federal  Assembly  selects  two  of  these  nine  to  act,  the  one 
as  President,  the  other  as  Vice-President,  of  the  Court.  The 
Court  sits,  not  at  Berne,  the  legislative  capital  of  the  Confed- 
eration, but  at  Lausanne. 

The  Federal  Assembly  elects,  at  the  same  time  that  it  chooses  the 
judges,  nine  substitutes  also,  who  sit,  as  occasion  demands,  in  place  of 
any  judge  who  cannot  act,  and  who  receive  for  their  occasional  services 
a  per  diem  compensation. 

The  members  of  the  Court  may  not  hold  any  other  office  or  follow 
any  other  business  during  their  term  as  judges ;  nor  can  they  be  mem- 
bers of  any  business  corporation. 

The  Court  elects  two  secretaries,  one  of  whom  must  represent  Ger- 
man, the  other  French  Switzerland,  —  and  one  of  whom  must  also  know 
Italian. 

Seven  judges  constitute  a  quorum  of  the  Court.  The  number  of 
judges  who  sit  in  any  case  must  alway  be  an  uneven  number,  including 
the  president. 


330  THE  GOVERmiENTS  OF  SWITZERLAND. 


569.  Criminal  Jurisdiction  of  the  Federal  Court.  —  In  the 

exercise  of  its  criminal  jurisdiction  the  Federal  Court  goes  on 
circuit.  The  country  is  divided  into  five  assize  districts  {Assi- 
sejibezirke) ,  one  of  which  embraces  French  Switzerland;  a 
second,  Berne  and  the  surrounding  Cantons ;  a  third,  Zurich 
and  the  Cantons  bordering  upon  it;  a  fourth,  central  and  part 
of  east  Switzerland ;  and  the  fifth,  Italian  Switzerland. 

The  Court  annually  divides  itself,  for  criminal  business,  into  three 
bodies :  A  Criminal  Chamber,  a  Chamber  of  Accusation,  and  a  Cassa- 
tion Chamber.  The  Criminal  Chamber  decides  at  what  places  in  the 
several  Districts  assizes  shall  be  held.  The  places  selected  furnish,  at 
their  own  cost,  a  place  of  meeting.  The  cantonal  police  and  court  offi- 
cers serve  as  officers  of  this  Court. 

The  Court  elects  every  six  years,  to  hold  for  the  whole  term  of  the 
Court,  two  "Judges  of  Inquest"  (UntersKchungsrichter)  who  are  charged 
with  the  preparation  of  cases. 

A  States-attorney  appears  for  the  Federal  Council  in  all  cases. 

570.  Cases  in  Public  Law. — The  jurisdiction  of  the  Fed- 
eral Court,  as  determined  by  statute,  covers  a  great  variety  of 
causes.  There  are  (1)  Cases  in  Public  Law.  These  include 
disputes  between  Cantons  concerning  such  matters  as  the  ful- 
filment of  inter-cantonal  agreements,  the  settlement  of  boun- 
dary lines,  conflicts  of  jurisdiction  between  the  authorities  of 
different  Cantons,  and  extradition ;  also  the  enforcement  of 
agreements  between  Cantons  and  foreign  governments;  and, 
most  fertile  of  all,  cases  involving  the  constitutional  rights  of 
citizens,  whether  those  rights  rest  upon  the  federal  or  upon  a 
cantonal  constitution. 

571.  It  is  considered  "  the  proper  and  natural  province  of  the  Federal 
Court "  in  Switzerland  "  to  defend  the  people  and  the  citizens  against 
abuses  of  power,  whether  they  proceed  from  federal  or  cantonal  au- 
thorities." Such  a  province  is,  however,  in  the  very  nature  of  the  case, 
insusceptible  of  definite  limitations ;  and  the  powers  of  the  Federal 
Court  have  gradually  spread  far  abroad  by  reason  of  the  temptations 
of  this  vague  prerogative.  The  most  usual  and  proper  cases  arising 
under  it  are  infringements  of  the  federal  guarantee  to  the  citizen  of 


THE  GOVERNMENTS  OF  SWITZERLAND. 


331 


equality  before  the  law,  of  freedom  of  settlement,  of  security  against 
double  taxation,  of  liberty  of  the  press,  etc.,  but  the  Court  has  gone 
much  beyond  these.  Its  jurisdiction  has  been  extended  to  the  hearing 
of  complaints  against  cantonal  authorities  for  ordinary  alleged  failures 
of  justice,  such  as  the  Constitution  can  hardly  have  contemplated  giving 
into  the  hands  of  the  Federal  Court.  The  Court  has  even  "  brought 
within  the  circle  of  its  judgments,  cases  where  the  appellant  asserts  a 
denial  of  his  claims  by  a  cantonal  judge  grounded  upon  merely  ob- 
structive motives  or  an  arbitrary  application  of  the  law."  i 

572.  The  Federal  Court  has  also  cognizance  of  contested 
citizenship  cases  between  Communes  of  different  Cantons.  For 
citizenship  in  Switzerland  is  first  of  all  of  the  Commune.  The 
Commune  is,  so  to  say,  the  unit  of  citizenship,  and  it  is  through 
communal  citizenship  that  cantonal  citizenship  is  held. 

573.  (2)  Civil  Cases  in  Private  Law.  —  The  administra- 
tion of  justice  between  individuals  under  federal  laws  is  left 
for  the  most  part  to  the  cantonal  courts,  which  thus  serve  in  a 
sense  as  federal  tribunals ;  but  if,  in  any  case  falling  under 
federal  law,  a  sum  of  3000  francs  be  involved,  or  if  the  matter 
involved  be  not  susceptible  of  money  valuation,  an  appeal  may 
be  taken  to  the  Federal  Court  from  the  court  of  last  resort  in 
the  Canton.  Certain  other  private  law  cases,  even  when  they 
do  not  involve  federal  law,  may  be  brought,  —  not  by  appeal, 
but  in  the  first  instance, — before  the  Federal  Court  upon 
another  principle,  because,  i.e.,  of  the  nature  of  the  jjarties  to 
the  suit,  viz. :  Cases  between  Cantons  and  private  individuals 
or  corporations ;  cases  in  which  the  confederation  is  defend- 
ant ;  cases  between  Cantons ;  and  cases  between  the  confed- 
eration and  one  or  more  Cantons  (sec.  1082). 

Cases  of  the  first  two  of  these  four  classes  can  be  brought  in  the 
Federal  Court  only  if  they  involve  a  sum  of  3000  francs.  Otherwise 
they  must  be  instituted  and  adjudged  in  the  cantonal  Courts. 

By  agreement  of  both  parties,  the  jurisdiction  of  the  Federal  Court 
may  be  invoked  in  any  case  in  which  the  subject  of  litigation  is  rendered 
important  by  virtue  of  federal  legislation. 

1  Orelli,  p.  42. 


382 


THE  GOVERNMENTS  OF  SWITZERLAND. 


574.  A  special  railroad  jurisdiction,  too,  has  been  given  to  the  Fed- 
eral Court,  covering  cases  concerning  right  of  way  and  the  right  of  emi- 
nent domain,  and  cases  in  private  law  between  railroads  and  the  Con- 
federation. 

575.  (3)  Criminal  Cases. — The  criminal  jurisdiction  of 

the  Federal  Court  covers  cases  of  high  treason  and  of  out- 
break or  violence  against  the  federal  authorities,  breaches  of 
international  law,  and  political  offences  which  were  the  cause 
or  the  result  of  disorders  which  have  necessitated  the  inter- 
vention of  the  Confederation.  It  may,  however,  in  the  dis- 
cretion of  certain  authorities,  include  a  variety  of  matters  in 
addition  to  these.  Federal  officers,  whose  breaches  of  duty 
are  ordinarily  punished  upon  judgment  of  the  cantonal  tribu- 
nals, may,  by  resolution  of  the  Federal  Council  or  of  the  Fed- 
eral Assembly,  be  handed  over  to  the  Federal  Court  to  be 
judged.  Cases  may  even,  also,  be  assigned  to  the  federal  tri- 
bunal by  cantonal  constitutions  or  laws,  if  the  Federal  Assem- 
bly assent  to  the  arrangement. 

The  Cassation  Chamber  of  the  Federal  Court  takes  cognizance,  be- 
sides, of  complaints  concerning  judgments  of  the  cantonal  courts  given 
under  certain  fiscal,  police,  and  banking  laws  of  the  Confederation. 

576.  The  Federal  Council:  (4)  Administrative  Cases. — 

The  administrative  jurisdiction  of  the  Confederation,  which  is 
exercised,  not  by  the  Federal  Court,  but  by  the  Federal  Coun- 
cil, includes  a  great  number  of  important  cases.  It  covers 
questions  touching  the  calling  out  of  the  cantonal  militia,  the 
administration  of  the  public-school  system  of  the  Cantons, 
freedom  of  trade,  occupation  and  settlement,  consumption 
taxes  and  import  duties,  freedom  of  belief  and  worship,  the 
validity  of  cantonal  elections  and  votes,  and  rights  arising  out 
of  contracts  with  foreign  powers  regarding  trade  relations,  the 
credit  to  be  given  to  patents,  exemption  from  military  service, 
freedom  of  passage,  etc.  In  all  these  cases  an  appeal  lies  from 
the  Federal  Council  to  the  Houses. 


THE  GOVERNMENTS  OF  SWITZERLAND. 


333 


577.  Inter-Cantonal  Judicial  Comity.  —  The  Swiss  Consti- 
tution, in  close  imitation  of  tlie  provision  on  the  same  subject 
in  the  Constitution  of  the  United  States,  requires  that  full 
force  and  credit  be  given  the  judgments  of  the  courts  of  each 
Canton  throughout  the  Confederation. 


Some  Eepresentative  Authorities. 

Bluntschli,  J.  C,  "  Geschichte  des  schweizerischen  Bundesrechts  von 

den  ersten  ewigen  Biinden  bis  auf  die  Gegeiiwart."  2  vols.  1849- 

'52.    2d  ed.  Vol.  L,  1875. 
Blunier,  J.  J.,  "Handbuch  des  schweizerischen  Bundesstaatsrechts." 

2  vols.    1863-65.    New  ed.,  completed  by  J.  Morel,  1887. 
Dubs,  J.,  "  Das  offenthche  Recht  der  schweizerischen  Eidgenossen- 

schaft."    1877-78.    2  parts. 
Demombynes,  G.,  "  Les  Constitutions  Europeennes."    Ed.  1883.  Vol. 

II.,  p.  304  et  seq. 

Orelli,  Alois  von,  "  Das  Staatsrecht  der  schweizerischen  Eidgenossen- 
schaft  "  (in  Marquardsen's  "Handbuch  des  offentlichen  Rechts"). 
Freibm-g  in  B.,  1885. 

Snell,  Ludw.,  "  Handbuch  des  schweizerischen  Staatsrechts."  2  vols. 
Zurich,  1837-'45.  Contains  a  great  deal  of  original  material  for 
the  period  preceding  the  formation  of  the  present  federal  govern- 
ment. 

Meyer,  Johann,  "  Geschichte  des  schweizerischen  Bundesrechts."  2 
vols.    1875-78.    Supplement,  1881. 

"  Eidgenossische  Bundesverfassung,  Bundesgesetze,  und  Bun- 
desbeschliisse,"  1876. 

Staatskalender  der  schweizerischen  Eidgenossenschaft,"  1880. 
Adams,  Sir  F.  0.,  and  Cmmingham,  C.  D.,  "  The  Swiss  Confederation." 

8vo.    London  and  New  York,  1889. 
Moses,  Bernard,  "The  Federal  Government  of  Sw-itzerland,  An  Essay 
on  the  Constitution."   A  comparative  study.   San  Francisco,  1889. 


IX. 


THE  DUAL  MONARCHIES:  AUSTRIA-HUNGARY  — 
SWEDEN-NORWAY. 

578.  The  Dual  Monarchies.  —  Midway  in  character  be- 
tween unitary  kingdoms  like  England  and  federal  states  like 
Germany  stand  the  dual  monarchies  of  Austria-Hungary  and 
Sweden-Norway.  These  governments  have  two  features  in 
common :  each  consists  of  two  kingdoms  united  under  a  single 
monarch,  and  under  neither  is  there  any  extensive  fusion  of 
the  political  institutions  of  the  two  countries  thus  united. 
Each  kingdom  keeps  its  own  institutions,  and  therefore  to  a 
large  extent  its  own  individuality  :  but  at  the  summit  of  their 
governments  a  single  throne  unites  them,  and  in  some  things 
a  common  machinery  of  administration.  Very  interesting  and 
important  differences  of  law  and  organization,  however,  sepa- 
rate Austria-Hungary  from  its  northern  analogue,  Sweden- 
Norway.  The  union  of  Austria  and  Hungary  is  much  more 
complete  than  that  between  Sweden  and  Norway  :  the  southern 
state  has  what  the  northern  state  has  not,  a  common  legisla- 
tive authority,  namely,  and  common  departments  of  adminis' 
tration. 

Austria-Hungary. 

579.  Austria's  Historical  Position.  —  The  general  course 
of  Austrian  history  I  have  already  noted,  in  tracing  the  devel- 
opment of  German  imperial  politics  (sees.  374,  381,  398). 
Until  the  middle  of  the  present  centur}*  Austria  stood  at  the 


THE  DUAL  MONARCHIES. 


335 


front  of  German  political  union ;  not  until  1866  was  she  de- 
posed from  leadership  in  Germany  and  set  apart  to  the  difficult 
task  of  amalgamating  the  polyglot  dual  monarchy  of  Austria- 
Hungary. 

580.  Acquisition  of  Hungary  and  Bohemia.  —  It  was  un- 
questionably Austria's  headship  in  the  Empire  which  enabled 
the  Habsburg  princes  at  once  to  broaden  and  to  consolidate 
their  domain  in  the  southeastern  border-land  between  Slav 
and  Teuton.  Their  power  and  influence  within  the  Empire  of 
course  gave  them  their  opportunity  to  control  the  destiny  of 
border  sl^ates  like  Bohemia  and  Hungary,  lying  at  Austria's 
own  doors.  Both  Hungary  and  Bohemia  fell  to  Habsburg  in 
the  same  year,  the  year  1526.  The  Austrian  monarchy,  as  we 
know  it,  may  be  said  to  have  begun  its  history  with  the  reign 
of  the  Habsburger  of  that  date,  Ferdinand  I. 

581.  Bohemia.  —  Bohemia  was  a  Slavonic  wedge  thrust  into 
the  side  of  Germany.  Compassed  about  by  hostile  powers,  it 
was  a  prize  to  be  fought  for.  Alternately  conquered  by 
several  neighboring  kingdoms,  it  finally  fell  into  German 
hands  and  became  an  apanage  of  the  Empire.  It  was  as  such 
that  the  Habsburgers  seized  it  when  its  throne  became  vacant 
in  consequence  of  the  extinction  of  a  Luxemburg  line  of 
princes.  In  1526  their  hold  upon  it  was  made  complete,  and 
in  1547  they  were  able  to  make  its  possession  hereditary 
within  their  famil}^. 

582.  Moravia.  —  Moravia  also  was  and  is  Slavonic.  Slavs  early 
drove  out  its  Teutonic  possessors,  and  were  prevented  from  joining  the 
Slavs  of  the  southeast  in  the  formation  of  a  vast  Slavonic  kingdom 
only  by  the  intervention  of  the  Magyars,  the  conquerors  of  Hungary. 
This  dominant  race  in  the  tenth  century  thrust  themselves  in  between 
the  Slavs  of  the  northwest  and  those  of  the  southeast,  and,  driving 
back  the  Slavs  of  Moravia,  reduced  the  once  *  Great  Moravia '  to  the 
dimensions  of  the  present  province.  Striven  for  by  Hungary,  by 
Poland,  and  by  Bohemia,  Moravia  finally  met  her  natural  fate  in  in- 
corporation with  Slavonic  Bohemia  (1029),  and  passed,  along  with  that 
kingdom,  into  Austrian  hands,  in  1526. 


336 


THE  DUAL  MONARCHIES. 


583.  Hungary.  —  Hungary  is  the  land  of  the  Magyars,  a 
Turanian  race  ^^hich  retains  even  to  the  present  day  its  dis- 
tinctive Oriental  features,  habits,  and  bearing  among  the  native 
European  races  about  it.  After  having  suffered  the  common 
fortune  of  being  overrun  by  numerous  barbaric  hordes  at  the 
breaking  up  of  the  Koman  empire,  the  territory  of  Hungary 
became,  in  889,  the  realm  of  the  Magyar  duke  Arpdd,  the  Con- 
queror. In  the  year  1000  the  duke  Vaik,  who  had  succeeded 
to  the  duchy  in  997,  received  at  the  hands  of  Pope  Sylvester 
II.  the  title  of  ^'  apostolic  king "  of  Hungary,  and,  under  the 
name  of  Stephen,  became  the  first  of  a  line  of  native  monarchs 
which  kept  the  throne  until  1301.  From  1301  till  1526  kings 
of  various  families  and  origins  won  places  upon  the  throne. 
During  this  period,  too,  Hungary  felt  the  full  power  of  the 
Turk,  since  1453  master  of  Constantinople.  The  battle  of 
Mohdcs  (29  August,  1526  )  brought  terrible  overthrow  upon 
the  Hungarian  forces  at  the  hands  of  Soliman  the  Magnificent, 
and  death  to  Louis,  the  Hungarian  king.  Louis  was  child- 
less ;  his  widow,  Maria,  was  sister  to  Ferdinand  I.  of  Aus- 
tria; and  it  was  her  influence  which  led  the  more  powerful 
party  of  nobles  within  the  kingdom  to  elect  the  Habsburger 
to  the  throne  and  so  put  Austria  permanently  in  the  Hungarian 
saddle.  Kot,' however,  until  1665-1671,  a  period  of  insurrec- 
tion in  Hungary,  did  the  Habsburgers  convert  their  elective 
into  an  hereditary  right  to  the  throne. 

584.  Transylvania,  Slavonia,  Croatia.  —  Transylvania,  Slavonia, 
and  Croatia,  annexed  at  various  times  to  Hungary,  passed  with  Hun- 
gary to  the  house  of  Habsburg.  Except  during  the  period  18-18  to 
1867,  the  period  during  which  Hungary  was  being  disciplined  for  her 
revolt  of  1848-'9,  these  provinces  have  remained  apanages  of  Hungary, 
though  Croatia  occupies  a  somewhat  distinctive  position,  and  is  always 
accorded  a  representative  of  her  own  in  the  Hungarian  ministry.  From 
1848  to  1867  Transylvania,  Slavonia,  and  Croatia  were  treated  as 
Austrian  crown  lands. 

585.  Galicia,  Dalmatia.  —  Galicia,  a  district  much  fought  for  and 
often  divided,  but  for  some  time  attached  to  Poland,  came  to  Austria 


THE  DUAL  MONARCHIES. 


337 


upon  the  first  partition  of  Poland,  in  1772.  Dalmatia,  once  part  of 
ancient  Illyria,  afterwards  a  possession  of  Venice,  much  coveted  and 
sometimes  held  by  Croatia  and  by  Hungary,  was  acquired  by  Austria 
through  the  treaty  of  Campo  Formio,  in  1797. 

586.  Bosnia  and  Herzegovina.  —  The  Congress  of  Berlin,  1878,  met 
to  fix  upon  a  basis  for  the  new  settlements  resulting  from  the  victories 
of  Russia  over  Turkey,  added  to  Austria's  multifarious  duties  as  ruler 
of  many  races  the  protectorate  of  Bosnia  and  Herzegovina,  districts 
inhabited  by  a  Servian  race  and  long  subject  to  Turkish  dominion. 

587.  Austria-Hungary :    Nature  of   the    Union.  —  The 

present  constitution  of  the  Austro-Hungarian  monarch}^  prac- 
tically recognizes  but  two  parties  to  the  union,  Austria  and 
Hungary,  namely.  Bohemia,  for  all  she  has  so  much  individ- 
uality and  boasts  so  fine  a  history  of  independence,  is  swal- 
lowed up  in  Austria:  only  the  Magyars  of  Hungary,  among 
all  the  races  of  the  heterogeneous  realm  of  the  Habsburgers, 
have  obtained  for  the  kingdom  of  their  making  a  standing  of 
equality  alongside  of  dominant  Austria. 

588.  Variety  of  Race.  —  The  commanding  difficulty  of 
government  throughout  the  whole  course  of  Austro-Hungarian 
politics  has  been  the  variety  of  races  embraced  within  the 
domain  of  the  monarchy.  First  and  most  prominent  is  the 
three-sided  contrast  between  German,  Slav,  and  Magyar; 
within  this  general  classification  of  the  population,  again,  Slav 
differs  from  Slav  by  reason  of  many  sharp  divergencies  of 
history,  of  speech,  and  of  religion ;  and  outside  this  classifica- 
tion, there  is  added  to  German,  Slav,  and  Magyar  a  miscellany 
of  Italians,  Jews,  and  others  before  the  sum  of  varietj'  is  com- 
plete. This  variety  is  emphasized  by  the  fact  that  only  the 
Czechs,  among  all  these  peoples,  have  among  the  larger  divis- 
ions of  the  empire  a  home  land  in  which  they  are  in  the 
majority.  In  Bohemia  and  Moravia  the  Czechs  constitute 
considerably  more  than  half  the  population ;  but  in  Hungary 
the  Magyars,  though  greatly  outnumbering  any  other  one 
element  of  the  population,  are  less  than  half  the  whole  number 
of  inhabitants ;  and  in  Austria,  though  Germans  are  very 


338 


THE  DUAL  MONARCHIES. 


greatly  in  the  majorit}^  in  the  central  provinces  which  may  be 
called  Austria  proper,  they  constitute  in  Austria  taken  as  a 
whole  very  little  more  than  one-third  of  the  population. 

589.  Home  Rule :  Bohemia,  Hungary.  —  At  least  two 
among  these  many  races,  moreover,  are  strenuously,  restlessly, 
persistently  dcA^oted  to  independence.  [N'o  lapse  of  time,  no 
defeat  of  hopes,  seems  sulhcient  to  reconcile  the  Czechs  of 
Bohemia  to  incorporation  with  Austria :  pride  of  race  and  the 
memories  of  a  notable  and  distinguished  history  keep  them 
always  at  odds  with  the  Germans  within  their  gates  and  with 
the  government  set  over  their  heads.  They  desire  at  least  the 
same  degree  of  autonomy  that  has  been  granted  to  Hungary. 

590.  Not  ^  granted '  either :  perhaps  it  would  be  more  strictly 
correct  to  say  the  degree  of  autonomy  won  by  Hungary.  Dom- 
inant in  a  larger  country  than  Bohemia,  perhaps  politically 
more  capable  than  any  Slavonic  people,  and  certainly  more  en- 
during and  definite  in  their  purposes,  the  Magyars,  though 
crushed  by  superior  force  in  the  field  of  battle,  have  been  able 
to  win  a  specially  recognized  and  highly  favored  place  in  the 
monarchy.  Although  for  a  long  time  a  land  in  which  the  noble 
was  the  only  citizen,  Hungary  has  been  a  land  of  political  lib- 
erties almost  as  long  as  England  herself  has  been.  The  nobles 
of  Hungary  won  from  their  king,  Andreas  II.,  in  1222,  a 
"  Golden  Bull  "  which  was  a  veritable  Magna  Charta.  It  lim- 
ited military  service  in  the  king's  army,  it  regulated  taxation, 
it  secured  for  every  noble  trial  by  his  peers,  it  gave  order  and 
propriety  to  judicial  administration,  it  even  enacted  the  right 
of  ^rmed  resistance  to  tyranny.  The  nobles,  too,  were  entitled 
to  be  personally  summoned  to  the  national  Eeichstag.  Stand- 
ing upon  these  privileges,  they  were  long  able  to  defeat  even 
the  absolutism  of  the  Austrian  monarchs.  Ferdinand  I.  ac- 
quired the  throne  of  Hungary  only  after  recognizing  her  con- 
stitution ;  not  for  more  than  a  hundred  years  did  the  crown 
become  hereditary  in  the  Austrian  house  ;  and  not  till  1687  did 
the  ancient  right  of  armed  resistance  lose  its  legal  support. 


THE  DUAL  MONARCHIES. 


339 


591.  The  period  of  reaction  which  followed  the  Napoleonic 
wars  and  the  Congress  of  Vienna  found  kings  everywhere  tight- 
ening where  they  could  the  bonds  of  absolutism :  and  nowhere 
were  those  bonds  more  successfully  strengthened  than  in  Aus- 
tria-Hungary under  the  reigning  influence  of  sinister  Metter- 
nich.  1848,  however,  saw  the  flames  of  insiirrection  break 
forth  more  fiercely  in  Hungary  than  anywhere  else  in  terror- 
struck  Europe :  only  by  the  aid  of  Eussia  was  Austria  able 
once  more  to  get  control  of  her  great  dependency.  So  com- 
pletely was  Hungary  prostrated  after  this  her  supreme  effort, 
however,  that  she  had  no  choice  but  to  suffer  herself  to  be  de- 
graded into  a  mere  province  of  Austria. 

592.  The  Constitution  of  1867.  —  Wars  and  disasters  pres- 
ently came  upon  absolutist  Austria,  however,  in  an  overwhelm- 
ing storm.  Thrust  out  from  Germany,  she  was  made  at  length 
to  feel  the  necessity,  if  she  would  give  her  realm  strength,  to 
give  her  subjects  liberty.  Her  eyes  at  last  fully  opened  to  the 
supreme  folly  of  keeping  the  peoples  under  her  rule  weak  and 
spiritless,  poor  and  motionless,  in  order  that  her  monarchs 
might  not  suffer  contradiction,  she  assented,  18  February,  1867, 
to  that  constitution  which  recognized  the  kingdom,  not  as 
Austria's,  but  as  the  joint  kingdom  of  Austria-Hungary,  and 
which  gave  to  the  empire  its  present  relatively  liberal  political 
organization. 

593.  Dual  Character  of  the  Monarchy.  —  The  Austro-Hun- 
garian  monarchy,  although  compacted  by  the  persistent  forces 
of  a  long  historical  development,  is  not  a  unitary  state,  a  ter- 
ritorial and  legal  unit,  but  a  "real  union"  simply  "of  two  con- 
stitutionally and  administratively  independent  states."  This 
union  is,  indeed,  more  substantial  than  that  between  Sweden 
and  Norway :  the  latter  has  existed  less  than  seventy -five  years, 
and  is,  as  we  shall  see  (sees.  625,  628),  but  an  arrangement  by 
which  two  kingdoms  may  subsist  under  a  single  king,  as  part- 
ners in  international  undertakings  but  as  something  less  than 
partners  in  affairs  of  nearer  interest ;  Austria-Hungary,  on  the 


340 


THE  DUAL  MONARCHIES. 


contrary,  held  as  a  dual  possession  by  a  single  royal  house  for 
more  than  three  hundred  and  fifty  years,  subjected  by  that 
house  to  the  same  military  and  financial  services,  and  left  the 
while  in  possession  of  only  such  liberties  as  they  could  retain 
by  dint  of  turbulent  insistence,  consists  of  two  countries  at 
many  points  interlaced  and  amalgamated  in  history  and  in 
institutional  life. 

594.  The  Fundamental  Laws.  —  The  dukes  of  Austria  at 
first  held  their  possessions  as  vassals  of  the  Empire  ;  but  they 
held  them  under  definite  and  liberal  charters  which  vouchsafed 
to  them  most  of  the  substantial  attributes  of  sovereignty. 
The  elevation  of  the  Habsburgers  to  the  imperial  throne  did 
not  essentially  change  the  relationship  of  the  Austrian  domin- 
ions to  their  immediate  lords  :  they  continued  to  be  their  pos- 
sessions in  the  full  feudal  sense  of  that  term,  the  rights  of  their 
peoples  conditioned,  indeed,  by  their  own  character  and  history, 
but  in  every  legal  aspect  subject  to  the  disposing  will  of  feu- 
dal masters.  The  present  constitutional  law  of  the  kingdom, 
therefore,  rests  upon  grants  of  privilege  from  the  crown  (sees. 
1139,  1140).  It  is  divisible  into  three  parts:  the  laws  of  the 
union,  the  laws  of  Austria,  and  the  laws  of  Hungary,  (a)  The 
laws  of  the  union  embrace,  besides  various  other  rules  concern- 
ing succession  to  the  throne,  the  Pragmatic  Sanction  of  1713 
(sec.  380),  which  was  formally  adopted  by  the  representatives 
of  the  Hungarian  group  of  states ;  and  the  identical  Austrian 
and  Hungarian  laws,  passed  in  December,  1867,  which  fix  the 
relations  of  the  two  kingdoms  to  one  another  and  arrange  for 
the  administration  of  their  common  affairs,  (b)  The  funda- 
mental law  of  Austria  consists  of  various  royal  decrees,  ^  di- 
plomas,' and  patents,  determining  the  membership,  privileges, 
etc.,  of  the  national  Reichsrath  and  of  the  provincial  Landtags. 
Of  these  the  chief  are  five  fundamental  laws  of  December, 
1867,  by  which  a  general  reconstruction  of  the  government  was 
effected  in  agreement  with  the  new  constitution  given  to  the 
union  in  that  year,    (c)  The  constitutional  arrangements  of 


THE  DUAL  MONARCHIES. 


341 


Hungary  rest  upon  the  Golden  Bull  of  Andreas  II.,  1222,  touch- 
ing the  privileges  of  the  Estates  (sec.  590)  ;  upon  certain  laws 
of  1790-'91  concerning  the  political  independence  of  Hungary, 
and  her  exercise  of  legislative  and  executive  powers  ;  upon 
laws  of  1847-'48  granting  ministerial  responsibility,  annual 
sessions  of  the  Reichstag,  etc. ;  and  upon  a  law  of  1868 
(amended  in  1873)  whereby  Croatia-Slavonia  is  given  certain  dis- 
tinct privileges  to  be  enjoyed  independently  of  Hungary.  These 
are  most  of  them  older  laws  than  the  Austrian.  Although 
able  for  long  periods  together  to  keep  Austria  at  their  feet, 
the  Habsburgers  have  never  been  able  to  bring  Hungary  to  a 
similar  attitude  of  submission.  Her  constitutional  separate- 
ness  and  independence,  though  often  temporarily  denied  in 
practice,  have  never  been  destroyed.  The  co-operative  rights 
of  the  Estates  in  government,  communal  self-administration, 
and  the  privileges  of  the  free  cities  have  triumphantly  per- 
sisted spite  of  all  efforts  made  for  their  suppression. 

595.  The  Common  Government:  the  Emperor-King. — 
The  Emperor  of  Austria  bears  also  the  titles  King  of  Bohe- 
mia and  '  Apostolic '  King  of  Hungary  (sec.  583).  He  stands 
at  the  head,  not  of  one  of  the  branches  of  the  government, 
but  of  the  whole  government  in  all  its  branches.  In  theory, 
indeed,  he  alone  governs :  he  makes,  Reichsrath  and  Landtags 
only  assent  to,  the  laws.  Laws  limit  his  powers  :  the  sphere  of 
his  authority  is  fixed  in  each  kingdom  by  definite  constitutional 
provision ;  but,  whatever  practical  concessions  modern  move- 
ments of  thought  and  of  revolution  may  have  compelled,  it  yet 
remains  the  theory,  and  to  a  certain  extent  the  fact,  of  consti- 
tutional development  in  Austria-Hungary  that  the  monarch 
has  himself  willed  such  limitations  upon  his  prerogative  as 
exist.  There  is,  therefore,  significantly  enough,  nothing  to 
be  said  by  constitutional  commentators  in  Austria^Hungary 
either  concerning  the  king's  veto  or  concerning  any  special 
arrangements  for  constitutional  change.  It  is  thought  to  go 
without  the  saying  that  the  monarch's  negative  will  absolutely 


342 


THE  DUAL  MONARCHIES. 


kill,  his  '  let  it  be '  abundantly  vitalize,  all  laws,  whether  con- 
stitutional or  other. 

Of  course  limitations  upon  the  monarch's  prerogative  are  not  neces- 
sarily any  the  less  real  because  he  may  abrogate  them  if  he  dare,  so 
long  as  the  whole  disposition  and  temper  of  his  people  and  of  his  times 
forbid  his  abrogating  them. 

596.  Succession,  Regency,  etc.  —  The  laws  touching  the  succes- 
sion to  the  Austro-Hungarian  throne  provide  so  minutely  for  the  widest 
possible  collateral  inheritances,  that  provision  for  a  vacancy  is  appar- 
ently not  necessary.  Permanent  laws  vest  the  regency  in  specific  repre- 
sentatives of  the  royal  house.   The  royal  age  of  majority  is  sixteen  years. 

597.  The  Common  Ministries.  —  The  Emperor-king  is  as- 
sisted in  his  direction  of  the  common  affairs  of  his  two  king- 
doms by  three  Ministries  and  an  Imperial  Court  of  Audit. 
There  is  (1)  a  Ministry  of  Foreign  Affairs  and  of  the  Imperial 
Household,  which,  besides  the  international  functions  indi- 
cated by  its  name,  is  charged  with  oversight  of  the  foreign 
trade  and  shipping  interests  of  the  dual  kingdom.  (2)  The 
Ministry  of  War,  by  which  the  common  standing  army  of  the 
two  kingdoms  is  administered.  The  legislation  upon  which 
the  maintenance  of  this  common  standing  army  is  based  origi- 
nates with  the  legislatures  of  the  two  kingdoms  acting  sepa- 
rately. It  is,  in  brief,  matter  of  agreement  between  the  two 
countries.  It  covers  such  points  as  the  size  of  the  army,  lia- 
bility to  military  service,  rules  and  methods  of  recruiting,  etc., 
and  is  embodied  in  identical  laws  adopted  by  the  two  legis- 
latures. 

As  commander-in-chief  of  the  army,  the  Emperor-king  has  the  full 
right  of  discipline,  full  power  to  appoint,  remove,  or  transfer  oflicers 
of  the  line,  and  the  determination  of  both  the  war  and  peace  organiza- 
tions of  the  army,  quite  independently  of  any  action  whatever  on  the 
part  of  the  minister  of  war.  In  most  other  concerns  of  the  military 
administration,  however,  his  acts  require  the  counter-signature  of  the 
minister. 

The  militia  services  of  the  two  kingdoms  are  separate,  and  separately 
maintained ;  but  in  war  the  militia  of  both  countries  becomes  supple- 
mentary to  the  regular  army. 


THE  DUAL  MONARCHIES. 


343 


(3)  The  Ministry  of  Finance :  acting  under  the  Emperor,  the 
minister  of  finance  prepares  the  joint  budget,  apportions  the 
costs  of  the  common  administration  between  Austria  and  Hun- 
gary, sees  to  the  raising  of  the  relative  quotas,  applies  the 
common  income  in  accordance  with  the  provisions  of  the 
budget,  and  administers  the  common  floating  debt.  The  Min- 
istry of  Finance  is  in  addition  charged  with  the  administration 
of  Bosnia  and  Herzegovina. 

598.  These  two  countries,  although  still  nominally  parts  of  the 
Turkish  empire,  have  really,  since  the  Treaty  of  Berlin  (1878),  been 
subject  in  all  things  to  Austria.  The  Austrian  ministry  of  finance 
stands  for  them  in  the  position  of  all  administrative  departments  com- 
bined. 

599.  The  chief  sources  of  the  common  revenue  in  Austria-Hungary 
are  customs  duties  and  direct  contributions  from  the  treasuries  of  the 
two  states.  Certain  parts  of  the  customs  duties  are  assigned  to  the 
common  treasury ;  and  such  expenses  as  these  are  not  sufficient  to 
meet  are  defrayed  by  the  contributions,  Austria  paying  seventy,  and 
Hungary  thirty,  per  cent,  of  the  sums  needed. 

600.  The  Economic  relations  of  Austria  and  Hungary  are  regu- 
lated in  the  important  matters  of  conmierce,  the  money  system,  the 
management  of  railroads  whose  operation  affects  tlie  interests  of  both 
kingdoms,  the  customs  system,  and  the  indirect  taxation  of  industries 
by  formal  agreements  of  a  semi-international  character  entered  into 
every  ten  years,  and  brought  into  force  by  separate  but  of  course 
identical  laws  passed  in  tlie  national  legislatures  of  both  countries. 
Each  state  controls  for  itself  the  collection  of  customs  duties  within  its 
own  territory ;  but  Austria-Hungary  is  regarded  as  forming  but  a  single 
customs  and  trade  territory,  and  the  laws  touching  administration  in 
these  fields  must  be  identical  in  the  two  countries. 

There  is  a  joint-stock  Austro-Hungarian  bank  at  Vienna ;  the  two 
kingdoms  have  the  same  system  of.  weights  and  measures ;  and  there  is 
separate  coining  but  the  same  coinage. 

601.  Patents,  Posts,  and  Telegraphs.  —  A  common  system  of 
patents  and  copyrights  is  maintained  ;  and  both  countries  have  the  same 
postal  and  telegraph  service. 

602.  The  Delegations.  —  The  most  interesting  and  char- 
acteristic feature  of  the  common  government  of  Austria-Hun- 


344 


THE  DUAL  MONARCHIES. 


gary  is  the  Delegations,  which  constitute,  in  germ  at  least,  a 
common  Legislature.  There  are  two  Delegations,  an  Austrian 
and  a  Hungarian.  They  are  committees  of  the  Austrian  and 
Hungarian  legislatures  respectively,  consisting  each  of  sixty 
members,  chosen  one-third  by  the  upper,  two-thirds  by  the 
lower  chamber  of  the  legislature  which  it  represents ;  but 
although  thus  in  form  a  committee  of  the  legislature  which 
sends  it  forth,  each  Delegation  may  be  said  to  represent  the 
kingdom  from  which  it  comes  rather  than  the  legislature  of 
that  kingdom :  for  it  is  not  subject  to  be  instructed,  but  acts 
upon  its  own  judgment  as  an  independent  body.  The  t-wo 
Delegations  sit  and  act  separately,  and  may  not  improperly  be 
described  as  two  parts  of  a  single  consultative  body,  though  to 
them  both  belong  identical  functions.  Each  passes  judgment 
upon  the  budget  of  the  common  administration,  each  is  at  lib- 
erty to  take  action  upon  the  management  of  the  common  debt, 
each  superintends  the  common  administration,  and  can  freely 
question  and  'interpellate '  (sec.  328)  the  ministers,  from  whom 
each  hears  periodical  reports,  and  over  whom  each  holds  sus- 
pended a  possible  impeachment ;  and  each  has  the  privilege  of 
initiative  as  regards  all  measures  coming  within  their  compe- 
tence :  and  these  functions  are  concurrent,  not  joint.  They 
are,  nevertheless,  obviously  functions  which  must  under  such 
a  system  be  exercised  in  full  agreement :  the  common  admin- 
istration cannot  serve  two  masters.  If,  therefore,  after  a 
triple  exchange  of  resolutions  no  agreement  has  been  reached 
between  the  two  bodies,  a  joint  session  is  held,  in  which,  with- 
out debate,  and  by  a  mere  absolute  majority  vote,  the  question 
at  issue  is  decided. 

The  term  for  which  the  Delegations  are  elected  is  one  year.  They 
are  called  together  by  the  monarch  annually,  one  year  at  Vienna,  the 
next  at  Buda-Pest. 

In  the  selection  of  members  of  the  Delegations  the  Austrian  crown 
lands  (the  provinces  once  separate  or  independent)  are  entitled  to 
representation,  as  is  also  favored  Croatia-Slavonia  on  the  Hungarian 
side. 


THE  DUAL  MONARCHIES. 


345 


When  the  two  Delegations  meet  in  joint  session,  the  number  of 
members  present  from  each  must  be  equal  to  the  number  of  those 
present  from  the  other,  any  numerical  inequality  being  corrected  by 
ballot. 

603.  Citizenship.  —  There  is  no  common  citizenship  for  the 
two  kingdoms ;  but  in  all  business  relationships  the  citizens  of 
each  state  are  regarded  as  citizens  of  the  other. 

604.  The  Government  of  Austria :  the  Executive.  —  The 

governing  power  rests  in  Austria  with  the  Emperor.  The  Empe- 
rors of  the  present  day  may  by  no  means  venture  upon  the  cen- 
tralization of  authority  attempted  and  in  part  effected  by  ]\Iaria 
Theresa  and  Joseph  II.;  but  Austrian  constitutional  law  does 
not  assign  duties  to  the  head  of  the  state  :  it  assigns  functions 
to  the  ministers  and  grants  privileges  to  the  representative 
bodies.  All  powers  not  explicitly  so  conferred  remain  with 
the  Emperor.  He  directs  all  the  administrative  activities  of 
the  state ;  he  appoints  the  members  of  the  upper  house  of  the 
Reichsrcdh ;  and  he  in  large  measure  controls  legislation.  But 
he  must  act  in  administration  through  his  ministers  and  in  leg- 
islation through  the  parliament.  The  countersignatures  of  the 
ministers  are  necessary  for  the  validity  of  his  decrees ;  and  the 
will  of  the  Beichsrath  is  indispensable  to  the  determination  of 
the  policy  and  content  of  all  legislation.  The  only  judicial 
prerogative  that  remains  with  him  is  the  power  of  pardon. 
On  all  sides  his  power  is  circumscribed  by  the  legally  neces- 
sary co-operation  of  other  regularly  constituted  authorities. 

605.  The  Ministry,  which  consists  of  a  Minister-President 
and  seven  heads  of  departments,  acts  as  the  Emperor's  council, 
but  it  does  not  constitute  a  board  whose  majority  vote  decides 
administrative  questions :  action  is  taken,  rather,  in  each 
department  upon  the  individual  responsibility  of  the  minister 
at  its  head.  The  ministers  have  a  threefold  office :  they  are 
the  Emperor's  councillors,  they  execute  his  commands,  and 
they  are  independent  administrators  of  special  branches  of  the 
public  service.    They  act  for  the  Emperor  also  in  introducing 


346 


THE  DUAL  MONARCHIES. 


measures  in  the  Eeichsrath.  They  must  attend  both  houses  to 
defend  the  policy  of  the  executive  and  to  answer  ^interpellar 
tions.' 

There  are  seven  executive  departments  :  Interior,  Land  Defence, 
Religion  and  Education,  Trade,  Agriculture,  Finance,  and  Justice.  The 
Minister-President  has  no  portfolio. 

606.  Legislation :  the  National  and  Provincial  Legisla- 
tures. —  In  all  legislation  of  whatever  kind  the  co-operation  of 
the  representatives  of  the  people  is  necessary;  but  not  all 
of  this  co-operative  privilege  belongs  to  the  Reichsrath,  the 
national  legislative  body.  Co-operation  in  the  greater  matters 
of  legislation  is  expressly  given  by  law  to  the  Eeichsrath,  but 
all  legislative  powers  not  expressly  granted  to  it  belong  to 
the  sphere  of  the  provincial  Landtags. 

607.  The  Reichsrath. — The  Eeichsrath  consists  of  a  House 
of  Lords  and  a  House  of  Kepresentatives.  To  the  House  of 
Lords  come  princes  of  the  blood  royal  who  have  reached  their 
majority,  the  archbishops  and  certain  bishops,  nobles  of  high 
rank  who  have  acquired  hereditary  seats  in  the  chamber,  and 
such  life  members  as  the  Emperor  chooses  to  appoint  in  recog- 
nition of  special  services  to  the  state,  to  the  church,  to  sci- 
ence, or  to  art.  To  the  other  house  come  representatives  of 
the  great  landowners,  of  the  cities  and  marts,  of  chambers  of 
trade  and  commerce,  and  of  the  rural  communes.  The  term 
of  the  lower  house  is  six  years. 

The  present  number  of  members  in  the  House  of  Representatives  is 
three  hundred  and  fifty-three.  Representation  is  apportioned  among 
the  several  lands  which  form  the  Austrian  domain  ;  and  in  Dalmatia 
the  greater  tax-payers,  instead  of  the  greater  landowners,  are  repre- 
sented. In  the  class  of  landowners  women  may  vote.  The  franchise 
—  which  is  partly  direct,  partly  indirect  —  is  made  to  rest  throughout 
all  the  classes  of  voters  in  one  way  or  another  upon  property. 

The  assent  of  the  chambers  is  required  not  only  in  legislar 
tion  but  also  for  the  validity  of  treaties  which  affect  the  trade 
of  the  country,  which  lay  economic  burdens  upon  the  state, 


THE  DUAL  MONARCHIES. 


3-iT 


which  affect  its  legal  constitution,  or  which  concern  any  aliena- 
tion or  extension  of  territory. 

It  is  the  general  rule,  of  course,  that  the  assent  of  both  houses  is 
necessary  to  every  resolution  or  action  of  the  Reichsrath ;  but  an  inter- 
esting exception  is  to  be  noted.  If  a  disagreement  arise  between  the 
charabers  upon  a  question  of  finance  or  of  military  recruitment,  the 
lowest  figures  or  numbers  are  to  be  considered  adopted. 

The  Emperor  names  not  only  tl^e  members  but  also  the  presi- 
dent and  vice-president  of  the  House  of  Lords.  He  calls  and 
opens  the  sessions  of  the  Reichsrath,  and  may  close,  adjourn, 
or  dissolve  it. 

608.  It  is  within  the  prerogative  of  the  Emperor,  acting  with  the 
advice  of  his  ministers,  to  enact  any  laws  which  may  seem  to  be  imme- 
diately necessary  during  a  recess  of  the  Beichsrath,  provided  they  be 
not  financial  laws,  or  laws  which  in  any  way  permanently  encumber  the 
state.  But  such  laws  must  be  submitted  to  the  Reichsrath  within  four 
weeks  after  its  next  assembling  (going  first  to  the  House  of  Represen- 
tatives), and  altogether  lapse  unless  submitted  to  the  Reichsrath  within 
that  time,  and  sanctioned  by  it. 

609.  The  Landtags.  —  The  greater  provinces  of  Austria  possess 
their  own  Landtags,  or  legislatures,  and  to  these  belong  considerable 
legislative  powers.  The  Emperor  names  the  chairmen  of  the  Landtags 
and  their  substitutes ;  he  calls,  opens,  and  may  close,  adjourn,  or  dis- 
solve the  Landtags.  But  their  assent  is  necessary  to  all  laws  which 
afEect  the  provinces  which  they  represent,  and  their  privileges  consti- 
tute an  important  part  of  the  total  of  legislative  power  which  rests 
with  the  representatives  of  the  people.  The  provinces  have  also  exten- 
sive rights  of  self-administration. 

610.  Local  Government.  —  The  Landtags  are  of  course  the 
most  conspicuous  organs  of  self-government ;  each  Landtag 
consists  of  a  single  chamber  and  represents  the  same  four 
classes  of  voters  that  send  members  to  the  national  Beichsrath, 
—  with  the  addition  of  a  fifth,  official  class.  The  administra- 
tive organ  of  the  province  is  a  provincial  Committee,  as  in 
France  (sec.  345).  Within  the  province  there  are,  in  some 
parts  of  the  country,  circles,  which  are  areas  of  financial 


348 


THE  DUAL  MONARCHIES. 


admimstration ;  and  throughout  the  country  the  smallest 
areas  of  local  government  are  the  Communes,  local  bodies 
which,  acting  within  the  commission  of  general  statutes,  exer- 
cise considerable  powers  of  self-direction  through  a  communal 
Committee  and  a  communal  president  chosen,  together  with  a 
certain  number  of  assistants,  by  the  Committee. 

The  Communes  are  organs  of  the  provinces,  and  their  presidents  to 
a  certain  extent  serve  the  general  state  administration. 

611.  The  Government  of  Hungary :  the  Executive.  — The 

king  bears  substantially  the  same  relations  to  the  other 
powers  of  the  state  in  Hungary  that  he  bears  in  Austria :  the 
directing  head  of  the  state,  he  yet  must  act  in  all  administra- 
tive matters  through  the  ministers,  and  in  all  legislative  mat- 
ters through  the  Reichstag.  Even  his  treaty-making  power  is 
limited  as  regards  Hungary  in  the  same  way  that  it  is  limited 
as  regards  Austria  (sec.  607). 

The  Hungarian  Ministry  consists  of  a  Minister-President  and,  if  he 
hold  no  portfolio,  of  eight  other  ministers :  a  minister  attendant  upon 
the  king,  a  minister  of  the  Interior,  a  minister  of  Finance,  a  minister  of 
Public  Works  and  Communication,  a  minister  of  Trade  and  Agriculture, 
a  minister  of  Justice,  a  minister  of  Religion  and  Education,  and  a 
minister  of  Land  Defence.  Added  to  these  there  is  always  also  a 
special  minister  for  Croatia-Slavonia. 

The  ministers  attend  the  sittings  of  the  chambers  and  play 
there  the  same  part  that  the  Austrian  ministers  play  in  the 
Reichsrath  (sec.  605). 

612.  The  Reichstag.  —  The  Reichstag,  the  national  repre- 
sentative body,  consists  of  a  House  of  Magnates  and  a  House 
of  Eepresentatives.  To  the  former  go  all  hereditary  peers 
who  pay  an  annual  land  tax  of  three  thousand  florins,  the 
highest  ofiicials  of  the  Roman  Catholic  and  Greek  churches, 
certain  ecclesiastical  and  lay  representatives  of  the  Protestant 
churches,  fifty  life  peers  appointed  by  the  king,  certain  mem- 
bers ex  officio,  one  delegate  from  Croatia-Slavonia,  and  those 


THE  DUAL  MONARCHIES. 


349 


royal  archdukes  who  have  reached  their  majority  and  who  own 
landed  estates  in  Hungary.  The  House  of  Eepresentatives 
consists  of  four  hundred  and  fifty-three  members  elected  by 
direct  vote  for  a  term  of  five  years. 

The  franchise  rests  upon  the  payment  of  a  small  amount  of  taxes  on 
land  or  on  income.  Members  of  certain  learned  and  professional  classes, 
however,  possess  the  franchise  without  any  property  qualification. 

The  president  and  vice-president  of  the  upper  house  are  nominated 
by  the  king. 

As  in  the  case  of  the  Austrian  representative  bodies,  so  also  in  the 
case  of  the  Hungarian,  the  king  convenes  and  opens,  and  may  close, 
adjourn,  or  dissolve  them. 

613.  Local  Government.  —  For  purposes  of  local  govern- 
ment Hungary  is  divided  into  shires,  certain  self-administered 
cities,  and  Communes.  The  organization  is  throughout  sub- 
stantially the  same.  In  each  area,  —  the  Commune  excepted, 
—  there  is  a  president  who  represents  the  central  government ; 
in  each,  without  exception,  there  is  a  subordinate  officer  who 
is  executive  representative  of  the  local  body ;  and  in  each 
there  is  an  assembly,  in  part  representative  and  in  part 
primary,  inasmuch  as  those  who  are  most  highly  taxed  are 
entitled  to  be  present. 

614.  Croatia-Slavonia. — There  is  not  in  Hungary  the  provincial 
organization  which  we  have  seen  to  exist  in  Austria  (sees.  609,  610). 
Croatia-Slavonia  is  the  only  constituent  part  of  the  Hungarian  lands 
which  has  its  own  separate  Landtag.  The  organization  of  this  territory 
is  in  all  respects  exceptional.  It  has  been  given  legal  rights  which  can- 
not be  taken  away  from  it  without  its  own  consent ;  and  it  has  a  dis- 
tinct administration  responsible  to  its  own  Landtag.  It  is  nevertheless 
of  course  an  integral  part  of  the  Hungarian  monarchy. 

Sweden-Norway. 

615.  Danes  and  Northmen.  —  The  territory  of  the  three 
northern  kingdoms  of  Denmark,  Sweden,  and  Norway  very 
early  became  a  home  of  the  Teutonic  peoples,  a  nursery  of 


350 


THE  DUAL  MONARCHIES. 


Teutonic  strength^  a  peculiar  possession  of  Teutonic  institu- 
tions. It  was  from  this  northern  land  that  the  fierce  North- 
men issued  forth  to  win  dominions  in  France,  in  Russia,  and 
in  Sicily ;  from  it,  too,  came  the  Dane  to  lay  his  strong  hand 
upon  England.  Its  ro^dng  giants  kept  the  world  in  terror  of 
piracy  and  invasion  for  centuries  together. 

616.  Early  Institutions  of  Sweden  and  Norway. — The 
institutions  of  these  strenuous  northern  folk  were  of  the  usual 
Germanic  sort.  Sweden  and  Norway  were  at  first,  like  all  the 
German  countries,  divided  into  a  few  score  of  loosely  confed- 
erated parts  held  together  by  no  complete  national  organizar 
tion  or  common  compacting  authority.  By  degrees,  however, 
the  usual  slow  and  changeful  methods  of  consolidation  wrought 
out  of  the  general  mass  of  petty  political  particles  the  two 
kingdoms  of  Sweden  and  Norway.  In  each  a  dominant  family 
had  worked  its  way  to  recognized  supremacy  and  a  throne. 
As  in  other  Germanic  countries  of  the  early  time,  so  in  these 
the  throne  was  elective ;  but,  as  elsewhere,  so  also  here,  the 
choice  always  fell  upon  a  member  of  the  dominant  family,  and 
the  kingly  house  managed  most  of  the  time  to  keep  together  a 
tolerably  compacted  power. 

617.  Union  of  Denmark,  Sweden,  and  Norway.  —  Once 
and  again  intermarriage  or  intrigue  united  Sweden  and  Norway 
under  the  same  monarch ;  once  and  again,  too,  Danish  power 
was  felt  in  the  Scandinavian  peninsula,  and  the  house  of  Den- 
mark obtained  a  share  in  the  distribution  of  authority.  Finally, 
in  1397,  a  joint  council  of  deputies  from  the  three  kingdoms 
met  at  Kalmar,  in  Sweden,  and  effected  the  Kalmarian  Union. 
This  union  resulted  directly  from  the  marriage  of  Hakon  VI., 
joint  king  of  Sweden  and  Norway,  with  Margaret,  daughter  of 
Valdemar  of  Denmark ;  the  Council  of  Kalmar  only  put  it 
upon  a  basis  of  clear  understanding.  It  was  agreed  that  the 
three  kingdoms  should  acknowledge  a  common  monarch ;  that, 
in  default  of  heirs  of  the  house  then  on  the  throne,  the  three 
kingdoms  should  elect  their  common  monarch,  by  such  methods 


THE  DUAL  MONARCHIES. 


351 


of  agreement  as  they  could  devise ;  but  that,  whether  under 
elected  or  under  hereditary  monarch,  each  kingdom  should 
retain  its  own  laws  and  institutions. 

618.  The  Independence  of  Sweden.  —  For  Norway  this 
union  with  Denmark  proved  of  long  standing.  Not  until  1814 
was  it  finally  severed.  Upon  Sweden,  however,  Denmark 
maintained  a  very  precarious  and  uncertain  hold,  now  ruling 
her,  again  thrust  out,  and  favored  the  while  only  by  her  own 
power  and  by  the  sleepless  jealousies  of  the  patriotic  but  self- 
ish and  suspicious  Swedish  nobles.  At  length,  in  1523,  Sweden 
was  able  to  break  finally  away  from  the  union.  Her  deliverer 
was  Gustaf  Eriksson,  better  known  as  Gustavus  Vasa,  who  by 
force  of  a  singular  genius  for  leadership  and  war  first  drove 
the  Dane  out  and  then  established  the  royal  line  which  was  to 
give  to  Europe  the  great  Gustaf  Adolf,  the  heroic  figure  of  the 
Thirty  Years'  War.  Gustaf  Eriksson  reigned  for  thirty-seven 
years  (1523-1560),  and  with  him  the  true  national  history  of 
Sweden  may  be  said  to  have  begun.  The  house  which  he 
founded  remained  upon  the  throne  of  Sweden  until  1818,  and 
under  the  long  line  of  sovereigns  which  he  inaugurated  the 
Swedish  constitution  was  worked  out  through  a  most  remarka- 
ble series  of  swings  back  and  forth  between  the  supremacy  of 
the  monarch  and  the  supremacy  of  the  royal  council.  Accord- 
ing as  the  personal  weight  of  the  king  was  great  or  small  did 
the  royal  power  wax  or  wane. 

619.  Oscillating  Development  of  the  Swedish  Constitution. 
—  The  old  constitution  of  Sweden  associated  with  the  king 
a  powerful  council  of  nobles  and  an  assembly  of  Estates.  In 
the  latter,  the  Riksdag  {Reichstag),  four  orders  had  acquired 
representation,  the  nobles,  the  clergy,  the  burghers,  and  the 
peasants.  For  two  hundred  years  the  constitutional  history  of 
Sweden  is  little  more  than  a  changeful  and  perplexing  picture 
of  the  ascendency  now  of  the  king,  now  of  the  Council  or  of 
the  Rihsda/j,  and  again  of  the  king,  or  of  the  Council  and 
Riksdag  combined.    With  Gustaf  Adolf  (1611-1632)  origi- 


352 


THE  DUAL  MONARCHIES. 


nated  the  clumsy  plan,  retained  until  the  present  century, 
according  to  which  each  of  the  orders  represented  in  the 
Riksdag  acted  separately  in  the  consideration  of  national 
affairs,  to  the  fostering  of  dissension  among  them.  By  dint  of 
the  masterful  policy  of  Karl  XI.  (1672-1697)  the  power  of  the 
crown  was  made  absolute,  the  Council  eclipsed.  Karl  XII.,  a 
great  soldier,  wasted  the  resources  of  the  country  and  thereby 
prepared  the  way  for  a  decline  of  the  royal  power.  1720  saw 
a  new  constitution  effected  which  gave  almost  entire  control  of 
affairs  to  the  Council  and  to  a  committee  of  one  hundred  drawn 
from  the  three  first  Estates  of  the  Riksdag,  and  1734  brought 
forth  a  new  code  of  laws.  Gustaf  III.,  however  (1771-1792), 
again  reduced  the  Council  from  its  high  estate,  and  left  to  the 
Riksdag  nothing  but  a  right  to  vote  against  an  offensive  war. 
And  so  the  constitution  swung  backwards  and  forwards  until 
the  present  century. 

620.  Bernadotte  and  the  Accession  of  Norway.  —  The  great 
change  which  ushered  in  the  present  regime  in  Sweden  came 
in  1814,  when  by  the  Peace  of  Kiel  and  the  action  of  the 
Congress  of  Vienna,  Norway  was  taken  from  Denmark  and 
given  to  Sweden.  Karl  XIII.  of  Sweden  (1809-1818)  was 
childless ;  and  in  1810  the  Swedes,  willing  to  please  Napoleon, 
the  master  of  Europe,  chose  as  prince  and  successor  to  the 
throne  Bernadotte,  a  man  who  had  risen  from  the  ranks  to 
be  one  of  the  many  distinguished  generals  bred  in  the  service 
of  Napoleon. 

Bernadotte  ascended  the  Swedish  throne,  with  the  title  of  Karl  XIV., 
in  1818,  but  he  had  really  come  into  the  possession  of  full  royal  power 
in  1811,  on  account  of  the  failing  health  of  Karl  XIII. 

It  turned  out,  however,  that  Bernadotte  was  more  ready  to 
oppose  Napoleon  than  any  longer  to  serve  him.  He  threw  the 
weight  of  Sweden  on  the  side  of  the  Allies,  against  the  designs 
of  France  ;  and  Norway  was  Sweden's  reward  when  the  Allies 
made  their  deal  at  Vienna. 


621.  Norway's  Fight  for  Independence  and  her  New  Con- 
stitution. —  Xorway,  though  willing  euough  to  escape  the  do- 
minion of  Denmark,  did  uot  care  to  exchange  for  it  an  equal 
bondage  to  Sweden.  She  refused  to  accept  the  settlement  of 
1814,  rose  in  rebellion  against  all  outside  control,  framed  for 
herself  a  liberal  constitution,  and  essayed  once  more  the  r6le 
of  an  independent  kingdom.  And  her  new  constitution  she 
managed  to  keep.  Bernadotte  compelled  her  acquiescence  in 
the  union  with  Sweden,  but  did  not  force  upon  her  a  surrender 
of  the  institutions  which  she  had  chosen  to  adopt. 

622.  The  union  between  Xorway  and  Denmark  accomplished 
at  Kalmar  had  resulted  in  the  absolute  power  within  his  Nor- 
wegian domain  of  the  common  king.  Allying  himself  with 
the  citizen  class  in  the  national  assembly,  the  king  had  been 
able  to  crush  the  nobles,  and  eventually  to  destroy  all  consti- 
tutional liberties.  This  he  was  the  more  readily  enabled  to  do 
because  the  throne  of  Norway  had  early  become  hereditary  and 
the  Norwegian  nobles  had  thus  been  robbed  of  that  sovereign 
influence  which,  under  the  elective  system  of  Denmark  and 
Sweden,  they  had  long  contrived  to  retain.  The  new  consti- 
tution adopted  by  the  Norwegians  in  1814  naturally  spoke  an 
extreme  revolt  from  the  long-hated  authority  of  kings.  It  was 
not  only  extremely  democratic,  it  was  also  largely  doctrinaire 
and  visionary.  Its  framers,  having  few  Norwegian  liberties 
to  build  upon,  had  recourse  to  the  always  futile  resource  of 
borrowing  foreign  experience.  They  embodied  in  the  new 
fundamental  law  constitutional  arrangements  which  they  had 
taken  from  England  and  the  United  States  and  which  found 
no  soil  of  Norwegian  habit  in  which  to  grow.  Still,  her  new 
constitution  gave  Norway  a  valuable  impulse  towards  regulated 
political  liberty ;  and,  if  not  carried  out  at  all  points,  was  at 
least  a  promise  of  things  hoped  for  and  afterwards  to  be  in 
great  measure  attained. 

623.  Constitutional  Contrast  between  Sweden  and  Nor- 
way. —  In  Sweden  there  had  been  no  such  democratic  revolu- 


THE  DUAL  MONARCHIES. 


tion ;  and  in  point  of  institutions  the  two  kingdoms  were  in 
1814  very  unequal  yoke-fellows.  Until  1866  Sweden  retained 
her  clumsy  machinery  of  four  estates  in  her  Riksdag,  as  well 
as  many  other  constitutional  arrangements  which  made  the 
royal  power  predominant.  Doubtless  the  standing  example 
of  Norway's  more  simple  and  liberal  constitution  had  much  to 
do  with  the  revision  of  the  Riksdag  undertaken  in  1866 ;  and 
it  is  unquestionable  that  the  democratic  ideas  embodied  in  the 
fundamental  law  of  the  Norwegian  kingdom  have  worked  as  a 
powerful  leaven  in  Swedish  politics.  Slowly  but  surely,  and 
principally  by  the  movement  of  Sweden,  the  two  countries  have 
drawn  towards  each  other  in  institutional  development. 

624.  The  Fundamental  Laws.  —  The  present  fundamental 
law  of  Sweden-Norway  consists  of  three  parts  :  (a)  the  separate 
constitutional  laws  of  Sweden,  (h)  the  separate  constitutional 
laws  of  Norway,  and  (c)  the  Imperial  Reichsacte  of  August, 
1815,  which  binds  the  two  countries  together  under  a  common 
sovereign.  This  last  is,  so  far  as  Sweden  is  concerned,  a  mere 
treaty,  having  never  passed  the  Riksdag  as  a  constituent  law 
of  the  kingdom  ;  but  for  Norway  it  is  an  integral  part  of  her 
constitution,  having  been  formally  adopted  as  such  by  -the 
Storthing,  (a)  The  separate  fundamental  laws  of  Sweden  have 
never  been  embodied  in  any  single  written  constitution,  but 
consist  of  various  laws  regulative  of  the  succession  to  the 
throne  passed  in  the  period  of  dynastic  change  (1809-1810);  of 
certain  portions  of  the  great  enactments  of  February,  1810, 
which  gave  to  the  Riksdag  an  orderly  arrangement  of  its  four 
Estates  and  regulated  the  order  of  legislative  business ;  of  the 
enactments  of  June,  1868,  which,  abolishing  the  fourfold 
constitution  of  the  Riksdag,  substituted  two  popular  houses ; 
and  of  the  law^s  guaranteeing  freedom  of  the  press,  passed  in 
May,  1810,  and  Julv,  1812.  Taken  together,  these  laws  consti- 
tute a  body  of  fundamental  provision  slowly  built  up  by 
Swedish  statesmen  upon  the  somewhat  inconstant  bases  of 
Swedish  constitutional  precedent.    Perhaps  its  most  signifj- 


THE  DUAL  MONARCHIES. 


355 


cant  feature  appears  in  tlie  detail  with  which  the  enactments 
of  1810  enter  into  the  regulation  of  the  order  and  methods  of 
business  in  the  Riksdag.  Under  the  former  complicated  divis- 
ion of  that  body  into  four  separate  houses  minute  regulative 
detail  was  of  course  necessary,  and,  as  seen  in  the  laws  of  1810, 
is  illustrative  of  one  of  the  chief  and  most  interesting  difficul- 
ties of  constitutional  development  in  Sweden.  (6)  The  consti- 
tutional laws  of  Norway,  on  the  other  hand,  are,  equally  from 
the  nature  of  the  case,  very  much  more  simple.  They  consist  of 
the  treaty  of  peace  signed  by  Sweden  and  Denmark  at  Kiel,  on 
the  14th  January,  1814,  whereby  Denmark  renounced  her  claim 
to  Norway  in  favor  of  Sweden ;  of  the  constitution  framed  by 
the  Norwegians  in  May,  1814,  during  the  struggle  against  all 
foreign  control ;  and  of  the  Imperial  ReicJisacte  of  August,  1815, 
which  Sweden  has  continued  to  observe  as  a  treaty  merely,  but 
which  Norway  has  made  a  part  of  her  constitution. 

625.  The  Common  Government :  The  King.  —  The  thong 
which  binds  Sweden  and  Norway  together  is  the  authority  of 
their  common  king;  but  this  authority  has  one  character  as 
respects  Sweden  and  quite  another  as  respects  Norway.  The 
fundamental  laws  of  each  kingdom  constitute  it  a  limited 
monarchy,  but  only  in  Norway  does  it  seem  to  be  the  chief 
object  of  constitutional  provision  to  limit  royal  power.  Both 
the  active  and  the  obstructive  parts  of  the  king  in  legislation 
are  much  more  considerable  in  Sweden  than  in  Norway.  In 
Sweden  it  rests  exclusively  with  him  to  formulate  what  are 
there  denominated  ^  economic  laws,'  administrative  laws, 
namely,  regulative  of  trades,  commerce,  and  manufacture,  and 
of  mines  and  forests.  He  is,  moreover,  the  sole  and  sovereign 
author  of  police  regulations,  and  of  laws  controlling  vagrancy ; 
he  has  power  to  make  rules  concerning  the  erection  of  build- 
ings and  to  originate  ordinances  touching  sanitary  precautions 
and  protection  against  fire.  As  regards  all  other  laws  he  must 
act  jointly  with  the  Biksdag;  but  his  veto  is  in  every  case 
absolute. 


356 


THE  DUAL  MONARCHIES. 


The  BiTcsdag  may  of  course  advise  the  king  concerning  the  economic 
and  administrative  legislation  entrusted  thus  exclusively  to  him ;  but 
any  action  it  may  take  has  the  force  of  advice  only.  The  only  control 
it  can  exercise  in  such  cases  comes  to  it  through  its  money  power :  it 
may  withhold  the  money  necessary  to  the  carrying  out  of  administra- 
tive or  economic  ordinances  determined  upon  by  the  king. 

626.  In  Norway,  on  the  other  hand,  the  king  has  no  inde- 
pendent legislative  powers,  except  during  recesses  of  the 
Stortliing ;  and  his  veto  is  only  suspensive.  Certain  police  reg- 
ulations and  certain  ordinances  touching  particular  branches  of 
industry  he  may  issue  while  the  Storthing  is  not  in  session, 
but  these  are  of  force  only  until  the  Stortliing  comes  together 
again.  His  veto  of  bills  passed  by  the  Storthing  may  be  over- 
ridden by  the  passage  of  the  same  bill  (it  must  continue  lit- 
erally the  same  )  by  three  successive  Storthings. 

This,  of  course,  renders  the  passage  of  bills  over  his  negative  an 
extremely  tedious  and  difficult  undertaking,  and  usually,  in  case  of  a 
very  urgent  disposition  on  the  part  of  the  Storthing  to  have  its  own 
way,  a  compromise  measure  is  finally  adopted,  often  at  the  express 
suggestion  of  the  king.  In  two  notable  instances,  however,  —  the  aboli- 
tion of  nobility  (1821),  namely,  and  the  establishment  of  ministerial 
representation  in  the  Storthing  (1884),  —  the  veto  was  overridden, 
through  the  persistence  of  the  Storthing,  by  means  of  the  constitu- 
tional passage  of  the  measures  proposed. 

627.  The  Throne.  —  The  royal  majority  is  fixed  at  eighteen  years. 
Women  are  excluded  from  the  succession.  The  king  must  be  of  the 
Lutheran  faith.  He  takes  the  throne  under  oath  to  obey  the  constitu- 
tion and  laws  of  the  kingdom,  and  he  must  temporarily  lay  down  the 
governing  power  when  sick  or  out  of  the  country,  except  when  absent 
in  the  field  of  battle. 

In  case  a  vacancy  occurs,  the  throne  is  to  be  filled  by  election,  the 
choice  to  be  made  by  the  Riksdag  and  the  Storthing  acting  separately, 
if  they  can  agree ;  or,  if  they  cannot  agree,  by  a  joint  committee  of 
seventy-two  (thirty-six  from  each  body)  assembled  at  Carlstad.  This 
committee  is  to  choose  between  the  two  candidates  by  secret  ballot. 

In  the  event  of  an  interregnum  or  of  the  minority  of  the  king,  the 
administration  of  the  two  kingdoms  is  to  be  undertaken  by  a  joint 
Council  of  State,  consisting  of  the  ten  ordinary  state  councillors  of 


THE  DUAL  MONARCHIES. 


857 


Sweden  and  ten  special  representatives  of  Norway  (sec.  596).  If  the 
interregnum  or  minority  continue  more  than  a  year,  however,  tlie 
national  representatives  must  be  called  together  and  given  an  oppor- 
tunity to  make  other  arrangements.  If  the  king  be  sick  or  absent,  his 
heir,  if  of  age,  governs  in  his  stead. 

628.  Foreign  and  Common  Affairs.  —  Almost  the  only 
common  affairs  of  the  Uvo  kingdoms  which  are  matters,  not  of 
agreement  between  them,  but  of  sovereign  action  on  the  part 
of  the  king  acting  for  both,  are  those  affairs  which  affect  the 
relations  of  Norway  and  Sweden  with  foreign  countries.  In 
this  field  of  foreign  affairs  the  king  has  power  to  declare  war 
and  conclude  peace,  to  form  or  dissolve  alliances,  to  use  ships 
of  war  or  troops,  to  send  or  recall  ambassadors,  —  has,  in  brief, 
all  the  prerogatives  of  sovereignty.  His  power  to  act  thus  for 
both  kingdoms  does  not,  however,  merge  Sweden  and  Norway 
as  regards  international  relations  :  they  retain  their  separate- 
ness  and  individuality  in  the  family  of  nations  ;  and  the  king 
may,  and  often  does,  conclude  treaties  affecting  one  of  his  king- 
doms only.  Peace  and  war  are  of  course,  however,  common  to 
both  kingdoms. 

629,  The  king  is  assisted  in  these  functions  by  no  common  minister 
of  foreign  affairs  :  he  acts  through  the  Swedish  minister,  Norway  having 
no  minister  of  foreign  affairs  at  all.  Certain  otlier  ministers  of  state 
must  be  present  when  the  Swedish  foreign  minister  lays  diplomatic 
affairs  before  the  king ;  and  when  such  matters  directly  affect  Norway 
a  Norwegian  minister  of  state  must  be  present. 

Norwegians  find  ground  for  serious  objection  to  the  present  constitu- 
tional arrangements  existing  between  the  two  countries  in  their  own  too 
slight  hold  upon  the  conduct  of  foreign  affairs. 

630.  War.  —  If,  in  the  exercise  of  his  great  international 
functions,  the  question  of  war  arise,  the  king  must  take  the 
opinion  of  a  joint  Council  of  the  two  kingdoms  (sec.  634),  but 
he  is  not  legally  bound  by  its  opinions.  He  must  himself 
assume  the  full  responsibility  of  deciding  the  question. 

631,  A  certain  limitation  rests  upon  the  royal  power  as  regards  tlie 
use  of  the  Norwegian  forces,    lie  may  freely  call  out  the  whole  military 


358 


THE  DUAL  MONARCHIES. 


force  of  Sweden,  both  land  and  naval,  but  he  may  not  use  the  Norwegian 
troops  of  the  line  without  the  express  consent  of  the  Storthing.  The  Nor- 
wegian militia,  moreover,  cannot  under  any  circumstances  be  employed 
outside  of  Norway,  and  it  is  within  the  competence  of  the  Storth'my  at 
any  time  to  increase  the  militia  at  the  expense  of  the  regular  line.  It 
has  indeed  actually  done  this. 

682.  Legislative  Control  of  Foreign  Relations.  —  Of  course,  too, 
the  king  must  in  every  exercise  of  his  royal  powers  act  within  the  limits 
of  the  fundamental  law.  He  cannot  enter  into  any  agreement  with  a 
foreign  country  which  is  not  consistent  with  the  constitutions  of  his 
kingdoms ;  he  may  not  conclusively  pledge  the  legislatures  of  his  king- 
doms to  any  action  or  to  ariy  expenditure  of  money  ;  and  he  is  of  course 
in  a  large  measure  dependent  upon  their  co-operation  for  the  execution 
of  treaties.  But  these  are  the  familiar  limitations  of  modern  representa- 
tive government. 

633.  Concurrent  Legislation.  —  Matters  which  are  of  com- 
mon interest  to  the  two  countries,  but  which  lie  outside  of  the 
prerogatives  of  the  common  king,  are  regulated  by  concurrent 
identical  resolutions  or  laws  passed  by  the  Riksdag  and  the 
Storthing  severally. 

Important  examples  of  such  concurrent  laws  are  those  which  affect 
the  money  systems  of  the  two  countries,  and  those  which  concern  the 
Lapps. 

634.  The  Joint  Councils.  —  The  place  of  a  common  ministry 
to  advise  the  king  touching  questions  which  affect  the  inter- 
ests of  both  kingdoms  is  taken  in  Sweden-]S"orway  by  a  com- 
plicated system  of  Joint  Councils  of  State.  Whenever  any 
matters  are  considered  in  the  Swedish  Council  of  State  at 
Stockholm  which  concern  Norway  also,  the  Norwegian  minister 
resident  and  the  two  Norwegian  Councillors  who  attend  the  king 
must  be  called  in ;  and  whenever  practicable  the  opinion  of  the 
whole  Norwegian  Administration  must  be  sought  and  obtained. 
Whenever,  on  the  other  hand,  matters  which  directly  affect 
Sweden  are  under  debate  in  the  Norwegian  Council  of  State  at 
Christiania,  that  Council  must  likewise  be  strengthened  by  the 
presence  of  three  Swedish  ministers.    There  is  thus  both  a 


THE  DUAL  MONARCHIES. 


359 


Swedish-Norwegian  and  a  Xorwegian-Swedish  Joint  Council 
of  State ;  and  not  a  little  doubt  exists  among  publicists  in  the 
two  kingdoms  as  to  what  particular  matters  are  proper  to  the 
consideration  of  one  and  what  to  the  consideration  of  the  other 
of  these  anomalous  bodies.  The  whereabouts  of  the  king 
serves  as  a  rough  criterion  as  to  the  predominance  of  Sweden 
or  of  Norway  in  these  Councils. 

The  sphere  of  these  Councils  is  quite  extended.  It  includes  the 
consideration  of  questions  of  war  and  peace,  the  oversight  and  the  costs 
of  the  diplomatic  service,  inter-territorial  relations,  the  balance  of 
financial  accounts  between  the  two  countries,  and  all  reciprocal  affairs 
in  which  the  intimate  co-operation  of  the  two  kingdoms  is  necessary. 

635.  Citizenship.  —  There  is  no  common  citizenship  for  the 
two  kingdoms,  although  Swedes  are  allowed  by  Norwegian  law 
to  acquire  citizenship  in  Norway  by  mere  residence.  Certain 
reciprocal  advantages  are,  however,  of  course  accorded  :  citizens 
of  either  country  may,  for  instance,  own  land  in  the  other ; 
interstate  trade  is  encouraged,  and  a  joint-ownership  of  vessels 
is  facilitated. 

Legal  banishment  from  one  kingdom  is  banishment  from  the  other. 

636.  The  Government  of  Sweden.  —  In  all  matters  of  in- 
ternal legislation  and  administration  the  two  kingdoms  are  as 
distinct  as  if  no  legal  relations  existed  between  them.  Each 
has  its  own  separate  treasury,  its  own  bank,  its  own  money 
system,  its  own  army  and  navy ;  and  each  has  its  own  complete 
administrative  and  legislative  organization. 

637.  The  Swedish  Executive :  The  King  and  Council.  — 
Sweden's  theoretical  development  in  the  field  of  constitutional 
law  has  been  less  complete  than  her  practical  development. 
Her  fundamental  law  recognizes  only  a  twofold  division  of 
governmental  powers,  into  Executive  and  Legislative.  Judicial 
power  is  supposed  to  reside  in  the  king,  and  is  in  theory  in- 
distinguishable from  the  Executive  power.  As  a  matter  of 
practice,  however,  though  the  king  nominates  the  judges,  they 


360 


THE  DUAL  MONARCHIES. 


are  quite  as  independent  of  liim  as  they  would  be  were  Swedish, 
theory  upon  this  head  more  advanced. 

638.  The  position  and  character  of  the  Swedish  Executive 
are  in  some  respects  peculiar.  The  king  is  charged  to  a  quite 
extraordinary  extent  not  only  Avith  the  general  oversight  but 
also  with  the  detail  of  administration :  the  ministers  are  not 
so  much  directing  heads  of  departments  as  councillors  of  state 
assigned  the  duty  of  advising  the  monarch.  They  have  seats 
in  the  Riksdag  with  a  full  voice  in  all  its  debates  and  the  right, 
exercised  in  the  name  of  the  king,  to  initiate  legislation.  This 
connection  with  the  legislature  involves  also,  as  a  natural  con- 
sequence, frequent  resignations  of  the  ministers  in  cases  of 
unalterable  disagreement  between  themselves  and  one  or  both 
of  the  chambers  ;  but  ministerial  responsibility  is  not  as  yet 
a  recognized  principle  of  the  constitution.  ISTot  only  the  full 
equality  of  the  two  chambers  stands  in  the  way  of  its  develop- 
ment, but  also  the  authority  of  the  king.  The  ministers  serve 
too  many  masters  to  be  altogether  responsible  to  any  one  of 
them.  In  respect  of  her  Executive,  therefore,  Sweden  may 
be  said  to  stand  half-way  between  England  and  France,  where 
ministers  are  wholly  responsible  to  one  house  of  the  legislature, 
and  Germany,  where  the  ministers  are  responsible  to  the  sov- 
ereign alone. 

639.  The  executive  departments  in  Sweden  are  the  following  seven : 
Foreign  Affairs,  Justice,  Land  Defence,  Sea  Defence,  Civil  Affairs 
(Interior),  Finance,  Ecclesiastical  Affairs.  At  the  head  of  the  Coun- 
cil of  State  (the  collective  ministry)  stands  a  prime  minister  who  is  not 
generally  assigned  any  specific  executive  duties.  The  division  of  busi- 
ness among  the  departments  rests  entirely  with  the  king.  Although 
the  king  governs,  however,  so  far  as  one  man  ma}',  every  decree  which 
he  issues  must  be  countersigned  by  the  head  of  the  department  whose 
affairs  it  concerns. 

640.  The  Riksdag. — The  national  Eiksdag  consists,  as  in 
most  other  governments,  of  two  chambers.  Of  these  one,  the 
upper  chamber,  consists  of  one  hundred  and  forty -three  mem- 


THE  DUAL  MONARCHIES. 


361 


bers  chosen  for  a  term  of  nine  years  by  the  representative 
bodies  of  the  counties  and  the  councils  of  the  larger  towns : 
these  electoral  bodies  being  in  their  turn  chosen  upon  the 
basis  of  a  complicated  communal  franchise  granted  chiefly  on 
property  or  income.  The  lower  house,  numbering  two  hundred 
and  twenty-two  members,  is  chosen  for  a  term  of  three  years 
by  the  electors  of  the  towns  and  of  the  rural  districts,  either 
by  direct  or  by  indirect  vote  as  a  majority  of  the  electors 
prefer.  The  rural  districts  are  allowed  one  member  for  every 
forty  thousand  inhabitants,  the  towns  one  for  every  ten  thou- 
sand inhabitants,  the  latter  being  thus  given  the  preference  in 
representation. 

This  does  not,  however,  result  in  the  return  of  a  majority  of  town 
members.  Only  seventy -six  members  are  returned  by  the  towns,  one 
hundred  and  forty-six  by  the  rural  districts. 

In  a  majority  of  the  electoral  districts  the  vote  is  now  direct,  by 
choice  of  the  electors. 

The  proportion  of  representation  in  the  upper  house  is  one  member 
for  every  thirty  thousand  inhabitants.  The  rural  population  has  by 
this  arrangement  a  larger  representation  in  the  upper  than  in  the  lower 
house.  Only  the  municipal  councils  of  those  towns  participate  in  the 
elections  to  this  house  whose  population  is  not  represented  in  the 
county  councils.  Such  towns  are  only  four  in  number:  Stockholm, 
Goteborg,  Malmii,  and  Xorrkoping. 

The  members  of  the  upper  house  are  not  elected  for  a  joint  term  of 
nine  years,  but  each  member  is  chosen  to  serve  that  length  of  time  :  so 
that  if  any  member  be  chosen  to  fill  a  vacancy  his  term  will,  of  course, 
overlap  the  terms  of  the  members  previously  elected.  The  body  is 
thus  given  a  sort  of  continuous  existence. 

641.  Joint  Legislation  upon  Financial  Questions.  —  It  is 

a  peculiarity  of  Swedish  constitutional  arrangements  that, 
under  some  circumstances,  the  two  houses  are  fused.  Legisla- 
tive business  is  under  the  general  direction  of  a  joint  committee 
of  the  two  chambers,  and  in  case  of  a  difference  of  opinion 
between  the  houses  upon  financial  matters  a  decision  is  reached 
in  joint  session.  The  houses  meet  in  joint  session  for  no 
other  purpose,  however. 


362 


THE  DUAL  MONARCHIES . 


642.  Local  Government.  —  Local  government  rests  in 
Sweden  upon  very  ancient  historical  foundations.  The  primi- 
tive Germanic  institutions  of  self-government  have  there  never 
been  entirely  overlaid  or  lost.  In  the  Communes,  the  oldest 
and,  so  to  say,  most  natural  areas  of  local  administration, 
there  is  almost  complete  autonomy,  the  people  themselves 
acting,  where  the  size  of  the  community  does  not  forbid,  in 
primary  assemblies,  quite  after  the  immemorial  fashion.  The 
counties  are  more  artificial  constructions  of  a  later  date  and 
are  presided  over  by  officers  appointed  by  the  king ;  but  in 
them  also  popular  representatives  play  an  important  super- 
visory part. 

643.  Changes  in  the  Constitution. — Changes  in  the  con- 
stitution can  be  quite  simply  effected.  If  proposed  by  one 
Hiksclag  and  adopted  by  the  next  (the  next  after  an  election 
for  the  lower  house)  they  become,  with  the  royal  assent,  in- 
corporated parts  of  the  fundamental  law. 

644.  The  Government  of  Norway  :  The  Norwegian 
Executive.  —  The  king  stands  in  substantially  the  same  rela- 
tions to  his  Council  in  Norway  that  he  occupies  towards  his 
Council  in  Sweden:  the  supreme  deciding  authority  is  his. 
Alike  in  Norway  and  in  Sweden  he  must  take  the  opinion  of 
his  ministers  upon  public  questions ;  and  when  he  is  in  Sweden 
he  may  not  take  any  decision  upon  Norwegian  affairs  without 
hearing  the  advice  of  the  three  Norwegian  councillors  who 
attend  him  there.  On  important  Norwegian  measures  not 
demanding  haste  he  must  even,  when  in  Sweden,  ask  the 
written  opinion  of  the  whole  Norwegian  Council.  But  the 
decision  is  his  in  any  case.  His  constant  absence  in  Sweden, 
however,  gives  a  weight  in  government  to  the  Norwegian 
Council  which  its  Swedish  counterpart  never  possesses.  The 
king  must  leave  to  the  Council,  acting  under  the  presidency  of 
a  viceroy  or  of  the  prime  minister,  the  major  part  of  the 
governing  authority,  including  even  his  veto ;  and  his  power 
to  reverse  its  action  is  strictly  limited.    As  regards  their  rela- 


THE  DUAL  MONARCHIES. 


363 


tioiis  to  the  national  legislature  the  Norwegian  do  not  differ 
greatly  from  the  Swedish  ministers.  They  sit,  without  voting, 
in  the  Storthing;  they  have  the  privilege  of  initiative,  and 
they  are  under  no  constitutional  obligation  to  resign  in  case  of 
defeat  (sec.  638). 

645.  The  Norwegian  Council  of  State  consists  of  two  parts,  (a)  a 
minister  of  state  and  two  councillors,  all  three  of  whom  accompany  the 
king,  and  (h)  the  *  Government '  proper,  consisting  of  a  minister  of 
state,  as  prime  minister,  and  six  or  seven  other  ministers,  according  as 
the  prime  minister  has  or  has  not  a  portfolio.  For  the  administrative 
departments  in  Norway,  as  in  Sweden,  are  seven  in  number;  namely, 
Ecclesiastical  Affairs,  Justice,  Interior,  Finance,  War  (including,  since 
1885,  the  navy).  Public  Works,  and  Audit.  The  division  of  business 
among  the  several  departments  rests  with  the  king. 

646.  The  Storthing.  —  The  national  Storthing  has  a  charac- 
ter and  constitution  quite  peculiarly  its  own.  It  is,  in  fact,  a 
single  body,  elected  as  a  whole,  but  self-divided  for  ordinary 
legislative  business  into  two  sections,  a  Lagthing  and  an 
Odelsthing.  It  is  chosen  for  a  term  of  three  years  and  consists 
of  one  hundred  and  fourteen  members,  thirty-eight  (or  one- 
third)  of  whom  are  returned  by  the  towns,  seventy-six  (or 
two-thirds)  by  the  rural  districts. 

This  proportion  is  fixed  by  law  and  can  be  changed  only  by  consti- 
tutional provision. 

The  franchise  rests  upon  a  property  qualification,  and  the  voting  is 
indirect.  In  the  cities  the  secondary  electors  are  chosen  in  the  propor- 
tion of  one  to  every  fifty  voters ;  in  the  country  districts  in  the  propor- 
tion of  one  for  every  one  hundred  voters. 

647.  Upon  the  assembling  of  a  new  Storthing  one-fourth  of 
its  members  are  selected,  by  the  Storthing^ s  own  vote,  to  con- 
stitute the  Lagthiyig ;  the  remaining  three-fourths  constitute 
the  Odelsthing ;  and  with  the  Odelsthing  remains  the  right  to 
originate  all  measures  of  legislation.  The  Lagthing  is  thus, 
as  it  were,  merely  a  committee  of  the  Storthing  set  apart  as  a 
revisory  body,  a  sort  of  upper  chamber,    It  is  only  with  regard 


364 


THE  DUAL  MONARCHIES. 


to  ordinary  bills,  however,  that  the  Storthing  acts  in  this  way 
as  two  houses.  Constitutional  and  financial  questions  it  con- 
siders as  a  single  body. 

In  case  the  Lagthing  twice  rejects  any  measure  sent  to  it  by  the 
Odelsthing,  the  difference  is  decided  in  joint  session  by  a  two-thirds  vote. 

648.  Local  Government.  —  Local  government  in  Norway 
does  not  rest  upon  the  same  undisturbed  foundations  of  his- 
torical tradition  which  in  Sweden  uphold  it.  The  laws  which 
give  to  it  its  organization  date  from  1837.  By  these  the  country 
is  divided  into  districts  and  communes,  in  the  government  of 
both  of  which  the  people  are  represented,  but  in  both  of  which 
officials  appointed  b}^  the  central  Government  exercise  consid- 
erable powers  of  oversight  and  control. 

649.  Changes  of  Constitution.  —  Constitutional  amendment 
is  effected  in  Norway  substantially  as  in  Sweden.  Proposals 
of  amendment  must  be  introduced  at  the  Jirst  ordinary  session 
of  the  Storthing  held  after  an  election,  and  must  be  finally  acted 
upon,  without  alteration,  during  the  first  session  of  the  next 
Storthing.  The  votes  of  two-thirds  of  the  members  present  are 
required  for  the  passage  of  such  amendments,  and  the  king's 
veto  operates  as  in  other  cases  (sec.  626). 

650.  The  Two  Countries.  —  More  than  seventy  years  of 
successful  union  (1814-1889)  now  stand  behind  this  singular 
dual  monarchy  of  Sweden-Norway.  The  attitude  of  Sweden 
towards  her  partner  land  has  been  marked  during  most  of  this 
period,  as  the  attitude  of  the  stronger  towards  the  weaker  party 
should  be,  by  not  a  little  forbearance  and  consideration.  The 
two  countries  have  concurred  in  removing  also  all  the  more 
serious  causes  of  possible  commercial  irritation  between  them, 
—  each  opening  its  markets  to  the  natural  products  of  the  other. 
Sweden,  nevertheless,  has  the  preponderant  weight  and  influ- 
ence in  all  common  affairs,  particularly,  of  course,  in  the  regu- 
lation of  the  foreign  relations  of  the  two  kingdoms  (sec.  628). 
Her  policy,  moreover,  is  often,  when  considered  from  Norway's 


THE  DUAL  MONARCHIES. 


365 


point  of  view,  a  Swedish  policy  merely,  looking  directly  or  in- 
directly towards  Swedish  control.  Not  a  few  causes  of  jealousy, 
not  a  few  points  of  friction,  remain  in  the  system.  An  influ- 
ential party  in  Norway,  therefore,  of  course  desires  an  even 
larger  measure  of  independence  and  home  rule  than  is  now 
possible  without  fundamental  constitutional  change,  suspect- 
ing, probably  not  without  just  cause,  that  it  is  the  object  of  a 
certain  party,  at  any  rate,  if  not  of  all  parties,  in  Sweden,  to 
weaken  the  guarantees  of  liberty  now  existing,  and  to  draw 
Norway  even  further  within  the  circle  of  Swedish  control. 
The  future,  it  would  seem,  must  assuredly  bring  forth  either 
greater  consolidation  of  the  dual  government  or  a  new  and 
better,  because  closer,  scheme  of  confederation. 


Some  Introductory  Authorities. 
On  Austria-Hungary : 

Worms,  Baron  H.  de,  "  The  Austro-Hungarian  Empire."  8vo.  London, 

1877.    Historical  and  descriptive. 
Patterson,  A.  J.,  "  The  Magyars,  Their  Country  and  Its  Institutions." 

2  vols.    London,  1870. 
Albrich,  J.,  "Das  Staatsrecht  der  oesterreichisch-ungarischen  Mon- 

SkTchie,"  in  Marquardsen's  "  Handbuch  des  oeffentlichen  Rechts." 

Freiburg  in  B.,  1884. 
Demombynes,  G.,  "  Les  Constitutions  Europeenes,"  II.,  pp.  167-304. 
Levy,  D.,  "  LAutriche-Hongrie,  ses  Institutions,"  etc.    Paris,  1872. 

On  Sweden-Norway: 

Dunham,  S.  A.,  "History of  Denmark,  Sweden,  and  Norway."   3 vols., 

12mo.    London,  1840.    Best  brief  history  in  English. 
Geijger,  E.  J.,  and  Carlson,  F.  F.,  "Geschichte  Swedens,"  translated 

into  German  by  /.  C.  Petersen.    5  vols.,  8vo.    Gotha,  1844-'75. 
AscheJioug,  T.  H.,  "Das  Staatsrecht   der  vereinigten  Konigreiche 

Schweden  und  Norwegen,"  in  Marquardsen's  "Handbuch  des 

oeffentlichen  Rechts."    Freiburg  in  B.,  1886. 
Demombynes,  G.,  "Les  Constitutions  Europeenes,"  I.,  pp.  93-198. 


THE  GOVEENIVIENT  OF  ENGLAND. 

I.  Central  Government. 

651.  Origin  of  the  Constitution  Teutonic.  —  The  history 

of  government  in  England,  as  in  Germany,  begins  with  the 
primitive  politics  of  the  Teutonic  races.  Those  great  race 
movements  of  the  fifth  century  which  put  the  Frank  in  the 
Eoman's  place  in  Gaul  put  the  Angles  and  Saxons  in  the  place 
of  the  Eoman  in  Britain.  The  first  Teutons  who  made  a 
permanent  settlement  in  Britain  (a.d.  449)  did  not  find  the 
Roman  there ;  the  imperial  legions  had  been  withdrawn  from 
the  island  almost  forty  years  before  (a.d.  410)  to  serve  the 
Empire's  greater  necessities  in  her  contest  with  invading  hosts 
nearer  home.  But  the  new-comers  from  the  lowlands  about 
the  Elbe  and  the  Weser  found  there  many  splendid  and  im- 
pressive monuments  of  the  civilization  which  everywhere  kept 
company  with  Eoman  dominion.  What  effect  these  evidences 
of  the  displaced  system  of  Eome  may  have  had  upon  the 
rough  seamen  who  made  the  new  conquest,  or  how  much  of 
Eoman  influence  may  have  remained  with  the  people  of  Britain 
to  be  handed  on,  in  faint  reproduction,  to  future  masters  of  the 
island,  it  is  impossible  to  say.  Certainly,  however,  there  was 
nothing  of  Eome's  handiwork  in  the  forms  of  government 
which  the  Teutons  established  at  the  basis  of  English  politics. 
Those  forms  were  their  own.  They  were  reproductions,  as 
nearly  as  the  conditions  of  conquest  would  allow,  of  the  in- 


THE  GOVERNMENT  OF  ENGLAND. 


367 


stitutions  which  the  Romans  had  seen  in  use  among  their 
redoubtable  foes  beyond  the  Rhine  before  ever  the  Empire  had 
suffered  serious  inroad. 

652.  Primitive  Teutonic  Institutions. — These  institutions 
had  none  of  the  national  character  which  they  were  in  the 
course  of  time  to  acquire.  They  illustrated  the  well-known 
historical  sequence,  in  which  local  government  always  precedes 
central  government.  Men  governed  themselves  as  families  and 
small  communities,  before  they  were  governed  as  nations.  For 
the  Germans  of  that  early  time  the  village  was  the  centre  of 
political  life ;  national  organization  they  at  first  scarcely  knew 
except  for  purposes  of  war ;  kingship  among  them  was  honor- 
ary and  typical  rather  than  real.  The  freemen  of  each  little 
community  in  times  of  peace  directed  their  own  affairs  with 
quite  absolute  freedom  in  village  meeting.  Even  in  war  each 
freeman  had  a  vote  in  the  distribution  of  booty  and  could  set 
his  own  imperative  individuality  as  a  more  or  less  effectual 
check  upon  the  wilfulness  of  his  commander  (sees.  162-165). 
A  very  fierce  democratic  temper  seems  to  have  ruled  in  the 
politics  of  that  rough  primitive  time.  And  it  is  not  at  all 
likely  that  this  temper  was  a  whit  abated  among  the  hardy 
pirates,  as  tempestuous  as  the  northern  waters  which  they 
braved,  who  founded  new  kingdoms  in  Britain  in  the  fifth 
century. 

653.  Institutional  Changes  effected  by  Conquest.  —  It  was 

kingdoms,  however,  and  not  mere  loose  tribal  confederacies, 
which  they  established.  Concerted,  organized  movements  for 
conquest  did  the  same  thing  for  the  Angles  and  Saxons  that 
they  did  for  the  Franks  (sees.  234,  235)  :  they  made  real  king- 
ship necessary  as  an  abiding  basis  for  national  organization. 
The  military  leader  was  of  necessity  constituted  permanent 
king,  the  same  cohesion  being  needed  to  follow  up  and  enjoy 
conquest  that  had  been  needed  to  effect  it.  But  the  new  king- 
doms were  at  first  quite  small,  —  small  as  the  island  was,  it 
held  many  such,  —  and  the  internal  organization  of  the  tribes 


368  THE  GOVERNMENT  OF  ENGLAND. 


was  probably  not  deeply  affected  by  the  fact  that  a  throne  had 
been  set  up.  The  people  gathered,  as  was  their  long-time,  their 
immemorial  wont,  into  more  or  less  compact  but  always  small 
communities,  enjoying  their  lands  according  to  some  system 
of  common  ownership  which  left  the  chief  pastures  and  the 
princi2:)al  water  supply  open  to  use  by  all  and  reserved  only 
the  arable  land  to  separate  use  by  individuals,  —  a  separate  use 
which  individuals  enjoyed,  however,  subject  to  the  control  of 
the  community.  Justice  and  government  still  proceeded,  as 
of  old,  from  the  meeting  of  village  freemen. 

654.  The  Hundred-moot  and  the  Folk-moot. — But  there 
was,  besides  this  local  organization  time  out  of  mind  habitual 
with  the  Germans,  a  wider  organization  possessing  features 
which  possibly  had  not  been  known  in  forms  quite  so  fully 
and  symmetrically  developed  and  integrated  in  earlier  Ger- 
manic practice.  Communities  were  combined  into  ^hundreds,' 
and  it  was  a  combination  of  'hundreds,'  doubtless,  that  con- 
stituted the  little  kingdoms  of  the  first  periods  of  Saxon 
dominion,  —  some  of  which  at  any  rate  became  the  '  shires  * 
or  counties  of  the  later  times  when  all  England  was  united 
under  one  rule.  The  '  hundred,'  like  the  smaller  units  of  the 
system,  the  several  villages  or  communities,  had  its  moot '  or 
meeting,  composed  of  the  priest,  the  reeve,  and  four  men  from 
each  township  within  its  Imiits.  The  principal  functions  of 
this  hundred-moot  were  those  of  a  court :  for  the  hundred  was 
distinctively  a  judicial  rather  than  an  administrative  district. 
Above  the  hundred-moot,  at  the  top  of  the  primitive  system, 
was  the  general  folk-moot,  a  general  assembly  of  the  freemen, 
playing  the  same  part  of  tribal  or  national  council  that  Tacitus 
had  seen  similar  assemblies  play  in  Germany  in  the  first 
century. 

655.  English  Kingdom  and  English  County.  —  When  the 
English  kingdoms  were  many,  each,  probably,  had  its  general 
council,  which  sat  under  the  presidency  of  the  king,  and  which 
advised  with  him  concerning  the  common  interests  with  some 


THE  GOVERNMENT  OF  ENGLAND. 


369 


at  least  of  the  old  authoritativeness  which  its  conclusions  had 
possessed  before  the  new  kingship  had  been  created.  When 
England  had  been  made  a  single  kingdom,  in  the  later  days 
when  the  Norman  conquest  was  drawing  near,  these  divisions 
of  the  land,  these  kingdoms  which  had  once  had  such  indepen- 
dent political  life,  sank  to  the  r6le  of  counties,  and  their  folk- 
moots,  which  had  once  been  in  a  sense  national  assemblies, 
became  mere  shire-moots,  mere  county  courts,  presided  over  by 
the  sheriff  as  representative  of  the  king,  the  bishop  as  repre- 
sentative of  mother  Church,  and  the  ealdorman  as  representa- 
tive of  the  nation,  and  composed  of  the  landowners  of  the 
shire,  the  reeve,  priest,  and  four  men  from  each  township, 
twelve  representatives  from  each  hundred,  and  all  ofi&cials. 

656.  The  Witenagemot. — National  authority,  meantime, 
had  passed,  so  far  as  it  had  passed  to  any  assembly,  to  an 
assembly  of  another  kind,  to  a  great  council  called  the  Wit- 
enagemot, or  assembly  of  the  Wise.  We  have  no  certain 
knowledge  of  the  exact  character  of  this  famous  national 
body;  but  we  are  probably  warranted  in  concluding  that  it 
was  formed  more  or  less  closely  upon  the  model  of  the  assem- 
blies which  it  had  displaced.  The  national  councils  of  the 
smaller  kingdoms  of  the  earlier  time,  which  had  now  shrunk 
into  mere  shire  courts,  handed  on  their  functions  of  general 
counsel,  and  also,  no  doubt,  in  theory  at  least,  their  organiza- 
tion, to  this  Witenagemot^  the  representative  of  a  wider  nation- 
ality. Probably  it  was  within  the  right  of  every  freeman  to 
attend  and  vote  in  this  great  meeting  of  the  nation  ;  but  as  a 
matter  of  fact,  its  membership  was  limited,  apparently  from 
the  first,  to  the  chief  men  of  the  shires  and  of  the  royal  house- 
hold. To  it  came  the  sheriffs,  the  ealdormen,  the  bishops,  and 
chief  officers  and  thegns  about  the  king's  person. 

657.  Powers  of  the  Witenagemot.  —  Its  powers  were  very 
great  indeed,  in  theory  always,  perhaps  at  first  in  practice  also. 
To  it  belonged  the  old  popular  prerogative  of  electing,  or  upon 
occasion  deposing,  the  king.    It  gave  or  withheld  its  consent 


370 


THE  GOVEIlN]SIENT  OF  ENGLAND. 


to  grants  of  the  public  land.  It  was  the  supreme  court  of  the 
kingdom,  for  both  civil  and  criminal  cases.  It  shared  with 
the  king  the  law-making  and  appointing  power,  and  joined 
him  in  the  imposition  of  taxes.  As  the  king  grew  in  power 
and  influence,  the  co-operation  of  the  Witenagemot  in  judgment 
and  legislation  became  more  and  more  a  matter  of  form  only ; 
but  always  there  were  two  or  three  yearly  meetings  of  the 
body,  and  its  action,  though  in  most  things  merely  formal  and 
perfunctory,  was  yet  a  necessary  and,  symbolically,  a  valuable 
form,  preserving,  as  it  did,  the  memory,  if  no  more,  of  the 
nation's  freedom. 

658.  The  Norman  Feudalization.  —  With  the  Norman  con- 
quest came  profound  changes  in  the  government  of  England. 
The  chief  ofiicers  of  the  shire  became  royal  officers  merely,  the 
ecclesiastical  authority  being  set  apart  to  itself,  and  the  ealdor- 
man  being  shut  out  from  all  administrative  functions.  The 
land  William  confiscated,  in  the  ruthless  thoroughness  of  his 
conquest,  in  vast  quantities,  because  of  the  stubborn  resistance 
of  its  English  owners,  and  granted  to  Normans  or  to  submis- 
sive Englishmen  to  be  held  in  feudal  subjection  to  himself. 
The  feudal  system,  so  familiar  to  the  historian  of  the  continent, 
with  its  separated  baronial  jurisdictions  and  its  personal  depen- 
dencies of  vassal  upon  lord  and  of  lord  upon  overlord,  began 
to  be  developed  in  England  also.  Township  courts  in  most 
places  gave  way  to  baronial  courts  ;  hundred-moots  lost  their 
one-time  importance ;  and  all  judicial  power  that  did  not  pass 
into  the  hands  of  feudal  lords  tended  to  pass  to  the  court  of 
the  sheriff,  the  king's  lieutenant  in  the  shire.  Still  William 
kept  the  barons  under ;  he  did  not  suffer  their  power  to  become 
threatening  to  his  own,  but  kept  them  always  dependent  upon 
himself  for  the  continued  exercise  of  their  privileges. 

659.  The  Great  Council  of  the  Norman  Kings.  —  More  im- 
portant still,  he  preserved,  with  modifications  to  suit  his  change 
of  system,  the  national  assembly  of  the  Saxon  polity.  He 
claimed  to  come  to  the  throne  by  natural  right  and  legal  sue- 


THE  GOVERNMENT  OF  ENGLAND.  371 

cession,  not  by  conquest,  and  lie  sought  to  continue,  as  far  as 
might  be,  the  constitution  under  which  he  claimed  succession. 
He  sought  and  obtained  formal  election  to  the  throne,  as 
nearly  as  possible  in  accordance  with  the  ancient  forms  ;  and, 
his  throne  secure,  he  endeavored  to  rule  within  the  sanction  of 
ancient  custom.  He  maintained  the  Wit e nag e mot.  But  of 
course  its  character  greatly  changed  under  his  hands.  Eevolt 
hardened  his  rule,  to  the  exclusion  of  the  old  national  element 
from  the  central  assembly  of  the  realm.  As  the  new  organi- 
zation of  the  country  assumed  a  feudal  character  of  the  Xorman 
type,  that  new  character  became  mirrored  in  the  composition 
of  the  national  council.  The  Witenagemot  merged  in  the  Great 
Council  {magnum  or  commune  concilium)  of  the  king's  tenants- 
in-chief.  To  it  came  at  first,  besides  the  earls,  the  barons,  and 
the  knights,  who  either  in  fact  or  in  feudal  theory  held  their 
lands  of  the  king,  the  archbishops  also,  the  bishops,  and  the 
abbots  ;  subsequently,  however,  even  these  ecclesiastical  mem- 
bers were  admitted  only  as  barons,  as  holding  land  of  the  king 
and  so  members  of  the  feudal  hierarchy.  In  theory,  it  would 
seem,  every  landowner  was  entitled  to  claim  a  seat  in  this 
Council ;  it  was  meant  to  hold  the  place  of  a  national  assembly 
which  could  speak  for  the  governing  classes  ;  but  in  fact  only 
the  greater  barons  and  churchmen  as  a  rule  attended,  and  '  ten- 
ure by  barony '  became  at  length  the  exclusive  valid  title  to 
membership.  The  development  of  this  body,  the  Great  Coun- 
cil of  the  Xorman  kings,  is  the  central  subject  of  early  English 
constitutional  history  ;  for  from  it  may  be  said  to  have  sprung 
the  whole  effective  organization  of  the  present  government  of 
England.  Out  of  it,  directly  or  indirectly,  by  one  process  or 
another,  have  been  evolved  Parliament,  the  Cabinet,  and  the 
courts  of  law. 

660.  The  Feudal  System  in  England.  — England  was  not  feudal- 
ized by  the  Normans.  Feudalization  had  grown  there,  as  elsewhere, 
with  the  growth  of  Teutonic  politics,  under  Saxon  and  Dane  as  under 
Frank  and  Goth.    Society  in  England,  as  on  the  Continent,  had  divided 


372 


THE  GOVERNMENT  OF  ENGLAND. 


into  ranks  of  nobles,  freemen  and  slaves  bound  together  by  personal 
fealty  and  the  principles  of  landownership.  What  the  Norman  did  was 
to  give  new  directions  to  the  indigenous  growth  of  feudalism.  The 
system  had  not  gone  to  such  lengths  of  disintegration  in  England  as  it 
afterwards  went  on  the  Continent,  and  William  the  Conqueror's  first 
care  when  compacting  his  power  in  the  island  was  to  subordinate  all 
feudal  elements  permanently  to  the  crown.  He  saw  to  it,  by  the  un- 
hesitating use  of  his  great  power,  that  no  baron  should  be  able  to  cope 
with  the  king  without  wide  combination  with  other  barons,  such  as 
watchful  kings  could  probably  always  prevent ;  and  he  dulled  the  edge 
of  hostile  feeling  by  giving  to  the  greater  barons  of  the  kingdom  a 
function  of  weight  in  the  management  of  affairs  by  bringing  them  into 
peaceful  and  legitimate  combination  in  the  Great  Council,  which  he 
called  together  three  times  every  year,  and  whose  advice  he  never 
refused  at  least  to  hear.  That  Council  retained,  formally  at  any  rate, 
the  right  to  choose  the  king,  and  all  laws  were  declared  to  be  enacted 
by  and  with  its  advice  and  consent. 

661.  Character  of  English  Institutional  Growth.  —  It  has 

been  noted  as  a  leading  characteristic  of  the  constitutional 
history  of  England  that  her  political  institutions  have  been 
incessantly  in  process  of  development,  a  singular  continuity 
marking  the  whole  of  the  transition  from  her  most  ancient  to 
her  present  forms  of  government.  It  is  not  a  history  of  breaks 
or  of  new  establishments,  or  of  successive  new  creations  of 
instrumentalities  of  legislation  and  administration:  all  the 
way  through  it  is  a  history  of  almost  insensible  change,  of 
slow  modification,  and  of  unforced,  almost  of  unconscious, 
development.  Very  great  contrasts  appear  between  the  char- 
acter of  her  government  in  one  age  and  its  character  in  another 
age  distant  one  or  more  centuries  from  the  first ;  but  it  is  very 
difficult  to  perceive  any  alteration  at  all  when  comparison  is 
made  from  generation  to  generation.  Almost  no  changes  can 
be  given  exact  dates  :  each  took  place  '  about '  such  and  such  a 
year,  or  in  this  or  that  long  reign.  The  whole  process,  there- 
fore, is  one  which  may  be  outlined  in  quite  brief  epitome :  its 
stages  are  long,  its  features  large,  its  details  unessential  to 
clearness.    It  is  possible  to  trace  the  evolution  of  the  ordered 


THE  GOVERNMENT  OF  ENGLAND. 


373 


system  of  Parliament,  Cabinet,  and  courts  out  of  the  nebulous 
mass  of  the  Great  Council  without  burdening  the  recital  with 
too  great  a  weight  of  particulars. 

662.  The  Course  of  Development.  —  In  briefest  summary 
the  facts  are  these :  the  Great  (or  National)  Council  itself 
became  the  Parliament  of  the  realm ;  those  of  its  members,  as 
originally  constituted,  who  were  state  officers  and  chief  officials 
of  the  court  became  a  Permanent  royal  Council,  out  of  which, 
in  course  of  time,  grew  the  more  modern  Privy  Council  and  at 
length  the  Cabinet;  and  those  members  of  the  Permanent 
Council  whose  duties  were  financial  and  judicial  gradually  drew 
apart  from  the  rest  for  the  exercise  of  their  functions,  their 
work  being  finally  divided  among  them  according  to  its  nature, 
and  the  several  bodies  into  which  they  thus  fell  becoming,  in 
the  end,  the  courts  of  Exchequer,  of  Chancery,  and  of  common 
law. 

663.  The  Permanent  Council. — The  body  of  state  and 
court  officers  whom  the  king  kept  about  him  as  his  '  Ordinary ' 
or  Permanent  Council  were  originally  all  of  them  members  of 
the  Great  Council  and  seem  at  first  to  have  acted  as  a  sort  of 
"  committee,  or  inner  circle,''  of  that  greater  body.  The  Great 
Council  met  but  three  times  in  the  year ;  its  organization  was 
not  permanent ;  its  membership  varied,  both  numerically  and 
personally,  from  year  to  year.  The  officers  of  the  permanent 
service,  on  the  other  hand,  were  always  within  easy  reach  of 
consultation ;  they  were  in  a  certain  sense  picked  men  out  of 
the  larger  body  of  the  national  Council ;  it  was  natural  that 
they  should  be  consulted  by  the  king  and  that  their  advice, 
given  in  their  collective  capacity  as  a  smaller  council,  should 
carry  with  it  the  weight  of  their  connection  with  the  more 
authoritative  Great  Council.  As  a  matter  of  fact  at  any  rate, 
they  acquired  powers  almost  coincident  with  those  of  the 
national  body  itself.  Their  powers  came,  indeed,  to  possess 
an  importance  superior  even  to  those  of  the  more  august  assem- 
bly, being  exercised  as  they  were,  not  intermittently  or  occa- 


374 


THE  GOVERNMENT  OF  ENGLAND. 


sionally,  but  continuously ;  not  with  a  mere  outside  acquaint- 
ance with  the  posture  of  affairs,  but  with  an  inside  intimacy  of 
knowledge. 

664.  Composition  of  the  Permanent  Council. —  Under  the 
Norman  kings  the  membership  of  the  Permanent  Council  con- 
sisted, usually,  of  the  two  archbishops  (of  Canterbury  and  of 
York),  the  Justiciar,  the  Treasurer,  the  Chancellor,  the  Stew- 
ard, the  Marshal,  the  Chamberlain,  and  the  Butler,  with  the 
occasional  addition  of  other  officials,  such  as  the  king's  Ser- 
geant, and  of  such  bishops  and  barons  as  the  sovereign  saw 
fit  from  time  to  time  to  summon.  There  was,  however,  no 
fixed  rule  as  to  its  composition.  Possibly  every  baron,  as  a 
member  of  the  Great  Council,  could,  if  he  had  so  chosen,  have 
attended  the  sittings  of  this  section  of  the  Great  Council  also, 
which,  while  the  Great  Council  was  not  in  session,  masqueraded 
as  its  deputy  and  proxy.  Practically  it  would  seem  always,  as 
a  rule,  to  have  lain  within  the  king's  choice  to  constitute  it 
how  he  would. 

665.  The  Powers  of  the  Permanent  Council  were  enormous : 
were  as  large  as  those  of  the  king  himself,  who  constituted  it 
his  administrative,  judicial,  and  legislative  agent.  Its  "work 
was  to  counsel  and  assist  the  king  in  the  execution  of  every 
power  of  the  crown  which  was  not  exercised  through  the 
machinery  of  the  common  law " ;  ^  and  "  the  king  could  do 
nearly  every  act  in  his  Permanent  Council  of  great  men  which 
he  could  perform  when  surrounded  by  a  larger  number  of  his 
nobles ;  except  impose  taxes  on  those  nobles  themselves."  ^ 

But  the  Permanent  Council  very  early  ceased  to  act  as  a 
whole  in  the  discharge  of  all  its  functions  alike.  Itself  a  com- 
mittee, it  presently,  in  its  turn,  began  to  split  up  into  commit- 
tees. 

666.  The  Law  Courts.  —  Men  specially  learned  in  the  law 
were  brought  into  its  membership,  the  later  kings  not  hesitat- 

1  Stubbs,  Constitutional  History  of  England,  Vol.  III.,  p.  262. 

2  A.  V.  Dicey,  The  Privy  Council,  p.  ii. 


THE  GOVERNMENT  OF  ENGLAND. 


375 


ing,  when  the  needs  of  the  service  demanded,  to  introduce 
commoners,  as  the  Council  drifted  away  from  even  its  nominal 
connection  with  the  Great  Council ;  and  to  these  the  financial 
and  judicial  functions  of  the  crown  were  more  and  more  exclu- 
sively entrusted.  (Compare  sec.  293.)  It  was  not  long  before 
(a)  a  separate  Court  of  Exchequer,  which  was  at  first  charged 
principally  with  the  audit  of  finance  accounts,  had  been  per- 
manently assigned  its  special  ^barons'  as  Justices,  and  had 
acquired  jurisdiction  over  all  cases  in  which  the  king  was 
directly  concerned ;  (h)  another  special  bench  of  judges  had 
received,  as  a  Court  of  Common  Pleas,  jurisdiction  over  all 
civil  cases  between  subject  and  subject ;  (c)  still  another,  as  a 
supreme  court,  or  Court  of  King's  Bench,  which  always  accom- 
panied the  sovereign  wherever  he  went  and  which  was  in 
theory  presided  over  by  the  king  himself,  had  been  empowered 
to  supervise  local  justice  and  itself  control  all  cases  not  spe- 
cially set  apart  for  the  hearing  of  other  courts ;  and  (cZ)  the 
Chancellor,  who  had  once  been  merely  president,  in  the  king's 
absence,  of  the  Permanent  Council  when  it  heard  appeals  in  its 
judicial  capacity,  had  absorbed  to  himself,  in  his  Court  of 
Chancery,  the  whole  of  that  so-called  '  equitable '  function  of 
the  crown  by  virtue  of  which  the  king  had  granted  relief  to 
suitors  for  whose  cases  the  common  law  had  provided  no  ade- 
quate process.  The  Chancellorship  was  thus  put  in  the  way 
of  attaining  to  its  later-day  partial  ascendency  over  the  '  courts 
of  law.'  This  process  of  the  differentiation  and  development 
of  the  courts  began  in  the  early  years  of  the  twelfth  century 
and  may  be  said  to  have  been  completed  by  the  middle  of  the 
fourteenth. 

667.  Parliament.  —  Meantime  the  national  body,  the  G-reat 
Council,  from  which  the  Permanent  Council  and  courts  had  in 
a  sense  been  derived,  had  had  its  own  expansions  and  changes 
of  form  and  had  taken  on  a  new  character  of  the  utmost  sig- 
nificance. Not  greatly  altered  in  its  composition  during  the 
century  which  followed  the  Norman  conquest,  the  Great  Coun- 


376 


THE  GOVERNMENT  OF  ENGLAND. 


cil  was  profoundly  affected  by  the  outcome  of  Magna  Charta 
(a.d.  1215)  and  th.e  momentous  constitutional  struggles  which 
followed  it.  It  was  then  that  the  principle  of  representation 
was  first  introduced  into  the  constitution  of  Parliament  and 
commoners  as  well  as  nobles  given  seats  in  the  national  assem- 
bly. The  archbishops,  bishops,  and  abbots  attended  as  of 
course,  as  always  before,  and  the  earls  and  greater  barons  held 
themselves  equally  entitled  to  be  summoned  always  by  special 
personal  summons ;  but  the  lesser  barons,  who  formerly  had 
been  called- to  the  Council,  not  by  personal  summons,  but  only 
by  a  general  summons  addressed  to  them,  along  with  all  ten- 
ants-in-chief, through  the  sheriffs  of  the  counties,  had  given 
over  attending  because  of  the  expense  and  inconvenience  of 
the  privilege,  and  were  accordingly  no  longer  called.  Their 
place  was  filled  by  representation.  Writs  addressed  to  the 
sheriffs,  commanding  the  necessary  elections  to  be  held,  called 
for  representatives  of  the  lower  clergy  and,  more  important 
still,  for  representatives  (knights)  of  the  shires  and  (burgesses) 
of  the  towns.  The  Parliament  which  Edward  I.  summoned  in 
1295  contained  all  these  elements  and  established  the  type  for 
the  composition  of  all  future  Parliaments. 

668.  In  the  fourteenth  clause  of  Magna  Charta  John  was  made  to 
promise  that,  besides  summoning  the  archbishops,  bishops,  abbots, 
earls,  and  greater  barons  seA^erallj,  by  special  personal  letters,  he 
would  summon  all  lesser  barons  also  by  a  general  summons,  through 
the  sheriffs  and  bailiffs.  But  this  general  summons  failed  of  the 
desired  effect. 

669.  Representatives  from  the  towns  were  summoned  first  in  1265 
by  Earl  Simon  of  Montfort,  who  knew  that  he  could  count  upon  the 
support  of  the  Commons  of  England  in  his  contest  with  the  king, 
Henry  III.,  and  who  called  burgesses  to  the  Parliament  which  he  con- 
stituted during  the  brief  period  of  his  supremacy  in  order  to  give  open 
proof  of  that  support.  Edward  I.  followed  Montfort's  example  in  1295, 
not  because  he  was  deliberately  minded  to  form  a  truly  representative 
assembly  as  a  wise  step  in  constitutional  development,  but  because  he 
wanted  money  and  knew  that  taxes  would  be  most  readily  paid  if  voted 
by  an  assembly  representing  all. 


THE  GOVERNMENT  OF  ENGLAND. 


377 


670.  Representatives  from  the  shires  (knights)  had  often  been  called 
to  Parliament  before  1265.  Step  by  step  first  one  element  of  the  nation 
and  then  another  liad  been  introduced  into  Parliament :  first  the  lesser 
barons,  by  general  summons,  —  only,  however,  to  drop  out  again,  — 
then  the  gentry  of  the  shires  by  election  in  the  counties,  finally  the 
burghers  of  the  towns  by  similar  election  in  county  court. 

671.  Genesis  of  the  Two  Houses.  —  Sucli  a  body  as  the 
Parliament  summoned  by  Edward  was,  however,  too  conglom- 
erate, too  little  homogeneous  to  hold  together.  It  did  not  long 
act  as  a  single  assembly ;  but  presently  fell  apart  into  two 
^  houses.'  Had  the  lower  clergy  continued  to  claim  represen- 
tation, there  might  and  probably  would  have  been  three  houses 
instead  of  two.  But,  instead  of  setting  up  a  separate  house  in 
the  civil  Parliament,  they  drew  apart  for  the  creation  of  an 
entirely  distinct  body,  which,  under  the  name  of  '  Convocation/ 
was  to  constitute  a  separate  ecclesiastical  parliament,  devoting 
itself  exclusively  to  the  government  of  the  church.  Their 
share  in  the  management  of  temporal  affairs  they  left  alto- 
gether to  the  ^  spiritual  lords,'  the  few  greater  magnates  of  the 
church  who  retained  their  places  in  the  national  council,  and 
to  such  lay  representatives  as  the  clergy  could  assist  in  elect- 
ing to  the  lower  house. 

There  were  left,  therefore,  in  Parliament  two  main  elements, 
lords  and  commoners.  The  lords,  to  whom  the  archbishops, 
bishops,  and  abbots  adhered  by  immemorial  wont,  formed  a 
house  to  themselves,  the  House  of  Lords.  The  commoners 
from  the  towns,  who  were  soon  joined  by  the  middle  order  of 
gentry,  the  knights  of  the  shires,  who  were  neither  great  lords 
summoned  by  personal  summons  nor  yet  commoners,  formed 
the  other  house,  the  House  of  Commons.  These  changes  also 
were  completed  by  the  middle  of  the  fourteenth  century.  Par- 
liament was  by  that  time,  outwardly,  just  what  it  is  now. 

672.  The  Privy  Council.  — The  Great  Council  and  its  direct 
heir.  Parliament,  were,  of  course,  not  a  little  jealous  of  the  enor- 
mous powers  wielded  by  the  j)referred  counsellors  of  the  king 


378 


THE  GOVERNMENT  OF  ENGLAND. 


whom  lie  maintained  in  permanent  relations  of  confidence  with 
himself,  and  through  whom  he  suffered  to  be  exercised  some 
of  the  greatest  of  the  royal  prerogatives.  Especially  did  the 
arrangement  seem  obnoxious  to  those  who  wished  to  see  the 
crown  and  its  ministers  restrained,  when  the  vitality  of  the  Per- 
manent Council  passed  to  a  still  smaller  ^  Privy '  Council.  This 
body  was  to  the  Permanent  Council  what  the  Permanent  Coun- 
cil had  been  to  the  Great  Council.  It  was  still  another  "  inner 
circle."  It  emerges  during  the  reign  of  Henry  VI.  (1422- 
1461).  The  Permanent  Council  had  become  too  large  and  un- 
wieldy for  the  continuance  of  its  intimate  relations  with  the 
sovereign ;  it  could  no  longer  be  used  as  a  whole  for  purposes 
of  private  advice  and  resolution ;  and  the  king  separated  from 
the  '  ordinar}^ '  councillors  certain  selected  men  whom  he  con- 
stituted his  Privy  Council,  binding  them  to  himself  by  special 
oaths  of  fidelity  and  secrecy.  From  that  moment  the  Perma- 
nent Council  is  virtually  superseded,  and  the  Privy  Council  be- 
comes the  chief  administrative  and  governing  body  of  the  realm. 

673.  The  Privy  Council  assumes  Judicial  Powers.  —  Many 
of  the  judicial  prerogatives  which  really  belonged  to  the  king 
when  sitting  in  his  Great  Council,  or  Parliament,  had  been 
claimed  for  the  king's  Permanent  Council :  hence  the  distinct 
law  courts  which  had  been  developed  from  its  midst  (sec. 
666)  ;  and  the  same  rights  of  exercising  the  powers  of  a  court^ 
which  had  been  assumed  by  the  Permanent  Council,  were  Id 
the  later  time  arrogated  to  itself  by  the  Permanent  Council's 
proxy,  the  Privy  Council.  Out  of  it  came,  in  course  of  time, 
the  well-remembered  Council  of  the  North,  the  hated  Star 
Chamber,  and  the  odious  High  Commission  Court,  which  were 
not  abolished  until  1641,  when  that  great  revolution  had  fairly 
set  in,  which  was  to  crush  arbitrary  executive  power  forever 
in  England,  and  to  usher  in  the  complete  supremacy  of  Par- 
liament. 

674.  Origin  of  the  Cabinet.  —  Meanwhile,  long  before  the 
parliamentary  wars  had  come  to  a  head,  the  same  causes  that 


THE  GOVERNMENT  OF  ENGLAND. 


379 


had  produced  the  Permanent  and  Privy  Councils  had  again  as- 
serted their  strength  and  produced  the  Cabinet,  still  a  third 
"  inner  circle/'  this  time  of  the  Privy  Council ;  a  small  body 
selected  for  special  confidence  by  the  king  from  the  general 
body  of  his  counsellors,  and  meeting  him,  not  in  the  larger 
council  chamber,  but  in  a  ^cabinet,'  or  smaller  room,  apart. 
The  Privy  Council  had,  in  its  turn,  become  "  too  large  for  de- 
spatch and  secrecy.  The  rank  of  Privy  Councillor  was  often 
bestowed  as  an  honorary  distinction  on  persons  to  whom  noth- 
ing was  confided,  and  whose  opinion  was  never  asked.  The 
Sovereign,  on  the  most  important  occasions,  resorted  for  advice 
to  a  small  knot  of  leading  ministers.  The  advantages  and  dis- 
advantages of  this  course  were  early  pointed  out  by  Bacon,  with 
his  usual  judgment  and  sagacity ;  but  it  was  not  till  after  the 
Restoration  that  the  interior  Council  began  to  attract  general 
notice.  During  many  years  old-fashioned  politicians  continued 
to  regard  the  Cabinet  as  an  unconstitutional  and  dangerous 
board.  Nevertheless,  it  constantly  became  more  and  more  im- 
portant. It  at  length  drew  to  itself  the  chief  executive  power, 
and  has  now  been  regarded  during  several  generations  as  an  es- 
sential part  of  our  polity.  Yet,  strange  to  say,  it  still  continues 
to  be  altogether  unknown  to  the  law.  The  names  of  the  noble- 
men and  gentlemen  who  compose  it  are  never  officially  an- 
nounced to  the  public ;  no  record  is  kept  of  its  meetings  and 
resolutions ;  nor  has  its  existence  ever  been  recognized  by  any 
Act  of  Parliament."  ^ 

675.  The  Development  of  the  Cabinet.  —  The  Cabinet  first 
comes  distinctly  into  public  view  as  a  preferred  candidate  for 
the  highest  executive  place  in  the  reign  of  Charles  II.  It  is 
now  the  central  body  of  the  English  Constitution.  The  steps 
by  which  it  approached  its  present  position  are  thus  summa- 
rized by  a  distinguished  English  writer : 

"  (1)  First  we  find  the  Cabinet  appearing  in  the  shape  of  a 

1  Macaulay,  History  of  England,  Vol.  I.,  pp.  197,  198  (Harper's  ed,, 
1849). 


380 


THE  GOVERNMENT  OF  ENGLAND. 


small,  informal,  irregular  Camarilla,  selected  at  the  pleasure 
of  the  Sovereign  from  the  larger  body  of  the  Privy  Council, 
consulted  by  and  privately  advising  the  Crown,  but  with  no 
power  to  take  any  resolutions  of  State,  or  perform  any  act  of 
government  without  the  assent  of  the  Privy  Council,  and  not 
as  yet  even  commonly  known  by  its  present  name.  This  was 
its  condition  anterior  to  the  reign  of  Charles  I. 

(2)  Then  succeeds  a  second  period,  during  which  this 
Council  of  advice  obtains  its  distinctive  title  of  Cabinet,  but 
without  acquiring  any  recognized  status,  or  permanently  dis- 
placing the  Privy  Council  from  its  position  of  de  facto  as 
well  as  de  jure,  the  only  authoritative  body  of  advisers  of  the 
Crown.  (Eeign  of  Charles  I.  and  Charles  II.,  the  latter  of 
whom  governed  during  a  part  of  his  reign  by  means  of  a 
Cabinet,  and  towards  its  close  through  a  '  reconstructed '  Privy 
Council.) 

"  (3)  A  third  period,  commencing  with  the  formation  by 
William  III."  of  a  ministry  representing,  not  several  parties, 
as  often  before,  but  the  party  predominant  in  the  state,  "  the 
first  ministry  approaching  the  modern  type.  The  Cabinet, 
though  still  remaining,  as  it  remains  to  this  day,  unknown  to 
the  Constitution,"  had  "now  become  de  facto,  though  not  de 
jure,  the  real  and  sole  supreme  consultative  council  and  execu- 
tive authority  in  the  State."  It  was  "  still,  however,  regarded 
with  jealousy,  and  the  full  realization  of  the  modern  theory  of 
ministerial  responsibility,  by  the  admission  of  its  members  to 
a  seat  in  Parliament,"  was  "  only  by  degrees  effected. 

"  (4)  Finally,  towards  the  close  of  the  eighteenth  century, 
the  political  conception  of  the  Cabinet  as  a  body,  —  necessarily 
consisting  (a)  of  members  of  the  Legislature ;  (h)  of  the  same 
political  views,  and  chosen  from  the  party  possessing  a  ma- 
jority in  the  House  of  Commons ;  (c)  prosecuting  a  concerted 
policy ;  (d)  under  a  common  responsibility  to  be  signified  by 
collective  resignation  in  the  event  of  parliamentary  censure  ; 
and  (e)  acknowledging  a  common  subordination  to  one  chief 


THE  GOVERNMENT  OF  ENGLAND. 


381 


minister,  —  took  dej&nite  shape  in  our  modern  theory  of  the 
Constitution,  and  so  remains  to  the  present  day."  ^ 

676.  Parliament  and  the  Ministers.  —  The  principles  con- 
cerning the  composition  of  the  modern  Cabinets  which  are 
stated  in  this  last  paragraph  of  Mr.  Traill's  summary  may  be 
said  to  have  been  slowly  developed  out  of  the  once  changeful 
relations  between  Parliament  and  the  ministers  of  the  Crown. 
As  I  have  said  (sec.  672),  the  national  council  very  early  devel- 
oped a  profound  jealousy  of  the  power  and  influence  of  the 
small  and  private  council,  of  state  and  court  officials,  which  the 
king  associated  with  himself  in  the  exercise  of  his  great  pre- 
rogatives. By  every  means  it  sought  to  control  the  ministers. 
Abandoning  very  soon,  as  revolutionary,  all  efforts  to  hold  the 
king  himself  responsible  for  executive  acts.  Parliament  early 
accepted  the  theory  that  the  king  could  do  no  wrong;  the 
breaches  of  law  and  of  right  committed  by  the  government 
were  committed  always,  —  so  the  theory  ran,  —  by  vicious  ad- 
vice of  the  king's  personal  advisers ;  they  could  do  wrong 
(here  the  theory  shaded  off  into  fact),  and  they  should  be  held 
responsible  for  all  the  wrong  done.  So  early  as  the  close  of  the 
twelfth  century  the  Great  Council  deposed  William  Longchamp, 
Justiciar  and  Chancellor  of  Kichard  I.,  for  abuse  of  power. 
During  the  fourteenth  century  Parliament  claimed  and  once  or 
twice  exercised  the  right  to  appoint  ministers  and  judges ;  it 
beheaded  Edward  IL's  Treasurer  and  imprisoned  his  Chancellor 
for  their  part  in  Edward's  illegal  acts  ;  and  at  the  close  of  the 
century  ( 1386)  it  impeached  Michael  de  la  Pole,  Richard  II.'s 
minister,  notwithstanding  the  fact  that  he  was  able  to  plead 
the  king's  direct  commands  in  justification  of  what  he  had 
done.  In  the  seventeenth  century  a  new  ground  of  impeach- 
ment was  added.  From  that  time  out,  ministers  were  held 
responsible,  by  the  severe  processes  of  trial  by  Parliament  for 
high  crimes  and  misdemeanors,  not  only  for  illegal,  but  also 


1  H.  D.  Traill,  Central  Government  (English  Citizen  Series),  pp.  23-25. 


382 


THE  GOVERNMENT  OF  ENGLAND. 


for  bad  advice  to  the  Crown,  for  gross  mistakes  of  policy  as 
well  as  for  overt  breaches  of  law  and  of  constitutional  rights. 

677.  Disappearance  of  Impeachment.  —  The  Act  of  Settle- 
ment and  the  policy  of  William  and  Mary  inaugurated,  however, 
the  final  period  of  Parliament's  supremacy.  Parliament's  pref- 
erences began  to  be  regarded  habitually  in  the  choice  of 
ministers,  and  impeachment,  consequently,  began  gradually 
to  fall  into  complete  disuse.  Its  place  was  taken  by  parlia- 
mentary votes,  —  finally  by  votes  of  the  House  of  Commons 
alone.  Ministers,  who  cannot  command  a  majority  in  the  House 
of  Commons  for  the  measures  which  they  propose,  resign,  and 
Parliament  has  its  own  way  concerning  the  conduct  of  the 
government. 

678.  The  Executive. — The  Executive,  under  the  English 
system,  so  far  as  it  may  be  described  at  once  briefly  and  cor-  . 
rectly,  may  be  said  to  consist  of  the  Sovereign  and  a  Cabinet 
of  ministers  appointed  with  the  Sovereign's  formal  consent. 
All  real  authority  is  with  the  Cabinet ;  but  the  ministers  are, 
in  law,  only  the  Sovereign's  advisers,  and  the  government  is 
conducted  in  the  Sovereign's  name.  The  true  place  of  the 
Sovereign  in  the  system  is  that  of  an  honored  and  influential 
hereditary  councillor,  to  whose  advice  an  exalted  title  and  a 
constant  familiarity  with  the  greater  affairs  of  state  lend  a 
peculiar  weight.  The  king  ^  is  in  fact,  though  of  course  not 
in  legal  theory,  a  permanent  minister,  differing  from  the  other 
ministers  chiefly  in  not  being  responsible  to  Parliament  for 
his  acts,  and  on  that  account  less  powerful  than  they. 

679.  The  Sovereign  is  not  a  member  of  the  Cabinet  because  George  I. 
could  not  speak  English.  Until  the  accession  of  George  I.  the  king 
always  attended  Cabinet  councils;  George  did  not  do  so  because  he 
could  not  either  understand  or  be  understood  in  the  discussions  of  the 
ministers.    Since  his  time,  therefore,  the  Sovereign  has  not  sat  with 

1  Since  the  throne  of  England  is  generally  occupied  by  a  man,  it  is  most 
convenient  to  use  '  king '  as  the  distinctive  title  of  the  Sovereign  in  every 
general  statement  of  constitutional  principles. 


THE  GOVERNMENT  OF  ENGLAND. 


383 


the  Cabinet.  A  similar  example  of  the  interesting  ease  with  which 
men  of  our  race  establish  and  observe  precedents  is  to  be  found  in  the 
practice  on  the  part  of  Presidents  of  the  United  States  of  sending  writ- 
ten messages  to  Congress.  Washington  and  John  Adams  addressed 
Congress  in  person  on  public  affairs ;  but  Jefferson,  the  third  President, 
was  not  an  easy  speaker,  and  preferred  to  send  a  written  message. 
Subsequent  Presidents  followed  his  example  as  of  course.  Hence  a 
binding  rule  of  constitutional  action. 

680.  Position  of  the  Cabinet.  —  The  Cabinet  consists  of  the 
principal  ministers  of  state  and  has  reached  its  present  position 
of  power  in  the  goYernment  because  of  its  responsibility  to 
Parliament.  The  chief  interest  of  English  constitutional  his- 
tory centres  in  the  struggle  of  Parliament  to  establish  its 
supremacy  over  all  other  authorities  in  the  conduct  of  the  gov- 
ernment ;  that  struggle  issued  in  the  last  century  in  the  com- 
plete triumph  of  Parliament ;  it  has  reached  its  farthest  logical 
consequence  in  our  own  century  in  the  concentration  of  parli- 
amentary authority  in  the  popular  house  of  Parliament,  the 
House  of  Commons.  Parliament  always  claimed  the  right  to 
direct  in  the  name  of  the  people,  of  the  nation ;  that  was  the 
solid  basis  of  all  its  pretensions  ;  and  so  soon  as  reforms  in  the 
composition  of  the  House  of  Commons  had  made  it  truly  repre- 
sentative of  the  people,  the  House  of  Lords,  which  represents 
only  a  single  class  of  the  people,  necessarily  sank  to  a  subordi- 
nate place. 

681.  Appointment  of  the  Cabinet  Ministers.  — The  respon- 
sibility of  the  ministers  to  Parliament  constitutes  their  strength 
because  it  makes  them  the  agents  of  Parliament:  and  the 
agents  of  a  sovereign  authority  virtually  share  its  sovereignty. 
The  king  appoints  only  such  ministers  as  have  the  confidence 
of  the  House  of  Commons  ;  and  he  does  it  in  this  way  :  he  sends 
for  the  recognized  leader  of  the  political  party  which  has  the 
majority  in  the  House  of  Commons  and  asks  him  to  form  a 
Cabinet.  If  this  leader  thinks  that  his  party  will  approve  of 
his  assuming  such  a  responsibility,  he  accepts  the  commission. 


384 


THE  GOVERNMENT  OF  ENGLAND. 


and;  usually  after  due  consultation  witli  other  prominent  mem- 
bers of  his  party,  gives  to  the  Sovereign  a  list  of  the  men  whom 
he  recommends  for  appointment  to  the  chief  offices  of  state. 
These  the  Sovereign  appoints  and  commissions  as  of  course. 
They  are  always  men  chosen  from  among  the  members  of  both 
houses  of  Parliament,  and  generally  because  they  have  proved 
there  their  ability  to  lead.  They  have,  so  to  say,  chosen  them- 
selves by  a  career  of  steady  success  in  the  debates  of  the 
houses :  they  have  come  to  the  front  by  their  own  efforts,  by 
force  of  their  own  ability,  and  represent,  usually,  tried  parlia- 
mentary capacity.  Such  capacity  is  necessary  for  their  success 
as  ministers ;  for,  after  they  have  entered  the  Cabinet,  they 
constitute,  in  effect,  a  committee  of  the  majority  of  the  House 
of  Commons,  commissioned  to  lead  Parliament  in  debate  and 
legislation,  to  keep  it,  —  and,  through  it,  of  course  the  country 
at  large,  —  informed  concerning  all  important  affairs  of  state 
which  can  prudently  be  made  public,  and  to  carry  out  in  the 
conduct  of  the  government  the  policy  approved  of  by  the  rep- 
resentatives of  the  people. 

682.  Composition  of  the  Cabinet.  —  The  Cabinet  does  not  con- 
sist invariably  of  the  same  number  of  ministers.  Eleven  oflScials  always 
have  seats  in  it  ;  namely,  the  First  Lord  of  the  Treasury,  the  Lord 
Chancellor,  the  Lord  President  of  the  Council,  the  Lord  Privy  Seal, 
the  Chancellor  of  the  Exchequer,  the  five  Secretaries  of  State  (for 
Home  Affairs,  for  Foreign  Affairs,  for  the  Colonies,  for  India,  and  for 
War),  and  the  First  Lord  of  the  Admiralty.  To  these  are  generally 
added  from  three  to  five  others,  according  to  circumstances  :  often,  for 
instance,  the  President  of  the  Board  of  Trade,  sometimes  the  Chief 
Secretary  for  Ireland,  frequently  the  President  of  the  Local  Govern- 
ment Board.  The  general  rule  which  governs  these  additions  is,  that 
every  interest  which  is  likely  to  be  prominent  in  the  debates  and  pro- 
ceedings of  the  House  of  Commons  ought  to  have  a  Cabinet  minister 
to  speak  for  it  and  to  offer  to  the  House  responsible  advice. 

683.  No  member  of  the  House  of  Commons  may  accept  office  with- 
out the  approval  of  his  constituents.  Upon  receiving  an  appointment 
as  minister  he  must  resign  his  seat  in  the  House  and  seek  re-election, 
as  representative  plus  minister.    The  whole  matter  is  merely  formal, 


THE  GOVERNMENT  OF  ENGLAND. 


385 


however,  in  most  cases.  The  opposite  party  do  not  usually,  under  such 
circumstances,  contest  the  seat  a  second  time,  and  tlie  minister  is  re- 
elected without  opposition. 

684.  The  custom  of  the  Sovereign's  selecting  only  the  chief  minister 
and  intrusting  him  with  the  formation  of  a  ministry  also,  as  well  as  the 
Sovereign's  absence  from  Cabinet  meetings,  originated  with  George  I., 
who  did  not  know  enough  of  English  public  men  to  choose  all  the 
ministers,  and  so  left  the  choice  to  Walpole. 

685.  This  method  of  forming  a  ministry  is,  of  course,  the 
outcome  of  Parliament's  efforts  to  hold  the  king's  ministers  to 
a  strict  responsibility  to  itself.  None  but  members  of  their 
own  party  would  suit  the  majority  in  Parliament  as  ministers  ; 
and  since  the  ministers  had  to  explain  and  excuse  their  policy 
to  the  houses  it  was  best  that  they  should  be  members  of  the 
houses  with  the  full  privileges  of  the  floor.  Only  by  such  an 
arrangement  could  the  full  harmony  desired  between  Parliament 
and  the  ministers  be  maintained :  by  face  to  face  intercourse. 

686.  Ministerial  Responsibility.  —  If  the  ministers  are 
defeated  on  any  important  measure  in  the  House  of  Commons, 
or  if  any  vote  of  censure  is  passed  upon  them  in  that  House, 
they  must  resign,  —  such  is  the  command  of  precedent,  —  and 
another  ministry  must  be  formed  which  is  in  accord  with  the 
new  majority.  The  ministers  must  resign  together  because 
the  best  form  of  responsibility  for  their  conduct  of  the  govern- 
ment can  be  secured  only  when  their  measures  are  taken  in 
concert,  and  the  House  of  Commons  Avould  be  cheated  of  all 
real  control  of  them  if  they  could,  upon  each  utterance  of  its 
condemnation  of  an  executive  act,  or  upon  each  rejection  by  it 
of  a  measure  proposed  or  supported  by  them,  ^  throw  over- 
board '  only  those  of  their  number  whose  departments  were 
most  particularly  affected  by  the  vote,  and  so  keep  substan- 
tially the  same  body  of  men  in  office.  If  a  defeated  or  censured 
ministry  think  that  the  House  of  Commons  in  its  adverse 
vote  has  not  really  spoken  the  opinion  of  the  constituencies, 
they  can  advise  the  sovereign  to  dissolve  the  House  and  order 


386 


THE  GOVERNMENT  OF  ENGLAND. 


a  new  election  ;  that  advice  must  be  taken  by  the  Sovereign ; 
and  the  ministers  stand  or  fall  according  to  the  disposition  of 
the  new  House  towards  them. 

687.  It  should  be  added  that  exceptional  cases  do  sometimes  arise  in 
which  responsibility  for  an  objectionable  course  of  action  can  be  so 
plainly  and  directly  fixed  upon  a  particular  minister,  who  has  acted,  it 
may  be,  without  the  concurrence,  possibly  without  the  knowledge,  of  his 
colleagues,  that  his  separate  dismissal  from  office  is  recognized  as  the 
only  proper  remedy.  A  notable  instance  of  this  sort  arose  in  England 
in  1851,  when  Lord  Palmerston,  then  foreign  secretary,  was  dismissed 
from  office  for  adding  to  various  other  acts  of  too  great  independence 
of  the  concurrence  of  his  colleagues  or  the  crown  an  unautliorized  ex- 
pression of  approval  of  the  coup  d'etat  of  Louis  Napoleon  in  France. 

688.  Legal  Status  of  the  Cabinet.  —  The  peculiar  historical 
origin  of  the  Cabinet  appears  in  a  statement  of  its  position  before  the 
law.  As  we  have  seen  (sec.  674),  it  is  not  a  body  recognized  by  law: 
its  existence,  like  the  existence  of  not  a  few  other  political  institutions 
in  England,  is  only  customanj.  The  particular  ministers  who  form  the 
Cabinet  have  the  right  to  be  the  exclusive  advisers  of  the  Crown,  — 
that  is,  the  only  executive  power,  —  only  by  virtue  of  their  membership 
of  the  Privy  Council.  They  must  all  be  sworn  into  the  membership  of 
that  body  before  they  can  act  as  ministers,  as  confidential  servants  of 
the  Sovereign.  The  Privy  Council  itself,  however  (as  a  whole,  that  is), 
has  not  been  asked  for  political  advice  for  two  centuries.  It  takes  no 
part  whatever  in  the  function  which  twelve  or  fifteen  ministers  exercise 
by  virtue  of  belonging  to  it ;  it  is  not  responsible,  of  course,  for  the 
advice  they  give ;  and  it  cannot  in  any  way  control  that  advice. 

689.  Initiative  of  the  Cabinet  in  Legislation.  —  Having 
inherited  the  right  of  initiative  in  legislation  which  once  be- 
longed to  the  Crown,  the  Cabinet  shape  and  direct  the  business 
of  the  houses.  Most  of  the  time  of  Parliament  is  occupied  by 
the  consideration  of  measures  which  they  have  prepared  and 
introduced ;  at  every  step  in  the  procedure  of  the  houses  it  is 
the  duty  of  the  ministers  to  guide  and  facilitate  business. 

690.  The  Prime  Minister.  —  "  Consistency  in  policy  and  vigor  in 
administration  "  on  the  part  of  the  Cabinet  are  obtained  by  its  organi- 
zation under  the  authority  of  one  *  First'  Minister.  This  Prime  Minister 
generally  holds  the  office  of  First  Lord  of  the  Treasur}-.    It  is  not  the 


THE  GOVERNMENT  OF  ENGLAND. 


B8T 


office,  however,  which  gives  him  primacy  in  the  Cabinet,  but  liis  recog- 
nized weight  as  leader  of  his  party.  The  leader  chosen  by  the  Sover- 
eign to  form  the  ministry  stands  at  its  head  when  formed,  fie  usually 
chooses  to  occupy  the  office  of  First  Lord  of  the  Treasury  because  the 
official  duties  of  that  place  are  nominal  only  and  leave  him  free  to 
exercise  his  important  functions  as  leader  of  the  party  in  power. 

691.  The  Departments  of  Administration.  —  So  much  for 
the  relations  of  the  Cabinet  to  the  Sovereign  and  to  Parlia- 
ment. When  we  turn  to  view  it  in  its  administrative  and 
governing  capacity  as  the  English  Executive,  we  see.  the  minis- 
ters as  heads  of  departments,  as  in  other  governments.  But 
the  departments  of  the  central  government  in  England  are  by 
no  means  susceptible  of  brief  and  simple  description  as  are 
those  of  other  countries,  which  have  been  given  their  present 
forms  by  logical  and  self-consistent  written  constitutions,  or 
by  the  systematizing  initiative  of  absolute  monarchs.  They 
hide  a  thousand  intricacies  born  of  that  composite  develop- 
ment so  characteristic  of  English  institutions. 

692.  The  Five  Great  '  Offices  »  of  State.  —  Not  attempting 
detail,  however,  it  is  possible  to  give  a  tolerably  clear  outline 
of  the  central  administration  of  the  kingdom  in  comparatively 
few  words.  The  Treasury  I  shall  describe  in  a  separate  para- 
graph (sec.  696).  The  Home  Office  superintends  the  constabu- 
lary, oversees,  to  a  limited  extent,  the  local  magistracy  and  the 
administration  of  prisons ;  advises  the  Sovereign  with  refer- 
ence to  the  granting  of  pardons ;  and  is  the  instrument  of  Par- 
liament in  carrying  out  certain  statutes  restricting  at  some 
points  the  employment  of  labor.  The  Foreign  Office  describes 
itself.  So  do  also,  sufficiently,  the  Colonial  Office,  the  War 
Office,  and  the  India  Office. 

693.  These  five  great  '  Offices  '  are  all,  historically  considered,  in  a 
certain  sense  offshoots  from  a  single  office,  that  of  the  king's  Principal 
Secretary  of  State.  By  one  of  the  usual  processes  of  English  constitu- 
tional development,  an  officer  bearing  this  title  very  early  came  into 
existence  as  one  of  the  most  trusted  ministers  of  the  Crown.  At  first 
only  a  specially  confided-in  servant  of  the  Sovereign,  employed  on  all 


388 


THE  GOVERNMENT  OF  ENGLAND. 


sorts  of  confidential  missions,  he  gradually  assumed  a  more  regular 
official  place  and  began  to  absorb  various  important  functions.  At 
length  it  became  necessary  to  double  him  and  to  have  two  Principal 
Secretaries  of  State,  two  men  theoretically  sharing  one  and  the  same 
office,  and  alternates  of  each  other.  Now  he  has,  to  meet  the  exigencies 
of  the  case,  been  quintupled.  There  are  five  Principal  Secretaries  of 
State,  all,  in  theory,  holding  the  same  office,  and  each,  in  theory,  legally 
authorized  to  perform  the  functions  of  any  or  all  of  the  others ;  but  in 
fact,  of  course,  keeping  each  to  a  distinct  department.  There  is,  then,  a 
Principal  Secretary  of  State  for  the  Home  Department,  a  Principal 
Secretary  of  State  for  Foreign  Affairs,  a  Principal  Secretary  of  State 
for  the  Colonies,  a  Principal  Secretary  of  State  for  War,  and  a  Prin- 
cipal Secretary  of  State  for  India.  It  is  an  interesting  and  characteristic 
case  of  evolution. 

694.  The  Admiralty,  the  Board  of  Trade,  and  the  Local 
Government  Board.  — The  Admiralty  is,  of  course,  the  naval 
office.  It  is  presided  over  by  a  Commission  of  six,  consisting 
of  a  chairman,  entitled  First  Lord  of  the  Admiralty,  and  five 
Junior  Lords.  The  Board  of  Trade  is,  in  form,  a  committee 
of  the  Privy  Council  It  is  reconstituted  at  the  opening  of 
each  reign  by  an  order  in  Council.  It  consists,  nominally,  of 
"a  President  and  certain  ex  officio  members,  including  the 
First  Lord  of  the  Treasury,  the  Chancellor  of  the  Exchequer, 
the  Principal  Secretaries  of  State,  the  Speaker  of  the  House 
of  Commons,  and  the  Archbishop  of  Canterbury.*'  ^  But  it 
has  long  since  lost  all  vital  connection  with  the  Privy  Council 
and  all  the  forms  even  of  board  action.  Its  President  is  now 
practically  itseK.  Its  duties  and  pri^dleges  are  both  extensive 
and  important.  It  advises  the  other  departments  concerning 
all  commercial  matters,  and  is  the  statistical  bureau  of  the 
kingdom ;  it  exercises  the  state  oversight  of  railways,  inspects 
passenger  steamers  and  merchant  vessels,  examines  and  com- 
missions masters  and  mates  for  the  merchant  marine,  adminis- 
ters the  statutes  concerning  harbors,  lighthouses,  and  pilotage, 
provides  standard  weights  and  measures,  superintends  the 

1  Traill,  pp.  126,  127, 


THE  GOVERNMENT  OF  ENGLAND. 


389 


coinage,  and  supervises  the  Post  Office.  The  Local  Government 
Board,  which  is  also  in  form  a  committee  of  the  Privy  Council, 
has  also  in  reality  none  of  the  characteristics  either  of  a  com- 
mittee or  of  a  board.  It  is  a  separate  and  quite  independent 
department,  under  the  control  of  a  President.  Its  other,  nom- 
inal, members,  the  Lord  President  of  the  Council,  the  five 
Principal  Secretaries  of  State,  the  Lord  Privy  Seal,  and  the 
Chancellor  of  the  Exchequer,  in  reality  take  no  part  in  its 
management.  It  is,  in  effect,  the  English  department  of  the 
Interior.  It  is  charged  with  supervising  the  administration, 
by  the  local  authorities  of  the  kingdom,  "  of  the  laws  relating 
to  the  public  health,  the  relief  of  the  poor,  and  local  govern- 
ment," —  duties  more  important  to  the  daily  good  government  ^ 
of  the  country  than  those  of  any  other  department.  It  also 
specially  examines  and  reports  upon  every  private  bill  affecting 
private  interests. 

695.  The  Post  Office  is  in  England  a  subdivision  of  the  Board  of 
Trade.  At  its  head  is  a  Postmaster  General.  It  controls,  besides  the 
usual  business  of  a  post-office  department,  the  telegraph  system  of  the 
country,  which  is  owned  by  the  government,  and  has  also  under  its 
direction  a  useful  postal  savings-bank  system. 

696.  The  Treasury.  —  The  history  of  this  department, 
which  may  be  reckoned  the  most  important,  may  serve  as  a 
type  of  English  departmental  evolution.  Originally  the  chief 
financial  minister  of  the  Crown  was  the  Lord  High  Treasurer, 
with  whom  was  associated  at  an  early  date  a  Chancellor  of  the 
Exchequer.  But  in  the  reign  of  George  I.  the  great  office  of 
Lord  High  Treasurer  was,  in  English  phrase,  put  permanently 
4nto  commission':  its  duties,  that  is,  were  intrusted  to  a 
board  instead  of  to  a  single  individual.  This  board  was  known 
as  the  "  Lords  Commissioners  for  executing  the  office  of  Lord 
High  Treasurer,"  and  consisted  of  a  First  Lord  of  the  Treas- 
ury, the  Chancellor  of  the  Exchequer,  and  three  others  known 
as  Junior  Lords.  Evolution  speedily  set  in,  as  in  other  similar 
English  boards.    That  is,  the  board  ceased  to  act  as  a  board. 


890 


THE  GOVERKMENT  OF  ENGLAND. 


Its  functions  became  concentrated  in  the  hands  of  the  Chan- 
cellor of  the  Exchequer ;  the  First  Lordship,  occupied  almost 
invariably  since  1762  by  the  Prime  Minister,  gradually  lost  all 
connection,  except  that  of  honorary  chairmanship,  with  the 
Treasury  Commission,  its  occupant  giving  all  his  energies  to 
his  political  functions  (sec.  690) ;  and  the  Junior  Lords  were 
left  none  but  i)arliamentary  duties. 

697.  The  Chancellor  of  the  Exchequer,  then,  is  the  work- 
ing head  of  the  Treasury  Department,  and  as  such  plays  one 
of  the  most  conspicuous  and  important  r6les  in  the  govern- 
ment of  the  country.  He  controls  the  revenue  and  expendi- 
ture of  the  state,  submitting  to  Parliament,  in  the  form  of  an 
annual  'budget,'  careful  comparisons  of  the  sums  needed  for 
the  public  service  and  of  the  sums  that  may  be  expected  to 
accrue  from  existing  or  possible  sources  of  revenue,  together 
with  proposals  to  extend  or  curtail  taxation  according  as  there 
is  prospect  of  a  deficit  or  of  a  surplus  under  existing  arrange- 
ments. 

698,  The  Estimates.  —  The  various  departments  make  up  their 
own  estimates ;  but  these  are  subjected  to  a  careful  examination  by  the 
Chancellor  of  the  Exchequer,  and  with  him  rests  the  prerogative  of 
revising  them  where  they  may  seem  to  admit  of  or  require  revision. 
Thus  changes  in  the  clerical  forces  of  the  departments  or  re-distribution 
of  their  work  among  sub-departments,  etc.,  cannot,  if  they  involve  ad- 
ditional expense,  be  made  without  express  approval  by  the  Treasury. 

Mr.  Gladstone  twice,  with  characteristic  energy,  held,  when  Prime 
Minister,  both  the  oflBce  of  First  Lord  of  the  Treasury  and  that  of 
Chancellor  of  the  Exchequer,  thus  in  effect  once  more  bringing  the 
First  Lord  into  vital  connection  with  his  nominal  department. 

699.  Administrative  Departments  of  the  Privy  CounciL 

—  Though  superseded  as  advisory  council  to  the  Crown  by  the 
Cabinet  and  deprived  of  almost  all  executive  control  by  the 
virtual  erection  of  its  several  boards  into  independent  depart- 
ments, the  Privy  Council  still  has  one  or  two  vital  parts. 
Chief  among  these  are  (1)  Tlie  Education  Department,  which 
consists  of  the  Lord  President  of  the  Council,  as  nominal 


THE  GOVERNMENT  OF  ENGLAND. 


391 


chief,  a  Vice-President  as  working  chief,  and  certain  ex  officio 
members,  among  them  the  Chancellor  of  the  Exchequer  and 
the  Secretary  of  State  for  Home  Affairs,  and  which  is  charged 
with  the  administration  of  the  public  educational  system  of 
the  country ;  and  (2)  The  Agricultural  Department,  to  which  is 
intrusted  the  enforcement  of  the  ^Contagious  Diseases  (Ani- 
mals) Acts'  of  1878-1886,  as  well  as  sundry  other  powers. 
Both  of  these  are  veritable  departments  of  the  Privy  Council 
and  preserve  in  a  rather  more  than  formal  way  their  collegiate 
character.  The  important  judicial  duties  of  the  Council  I  shall 
speak  of  in  another  connection  (sec.  736). 

700.  Other  Executive  Offices.  —  Subordinate  to  the  Treasury 
department,  but  in  reality  possessing  a  quite  distinct  individuality  of  its 
own,  is  the  Office  of  Public  Works  and  Buildings,  which  is  charged  with 
the  "custody  and  supervision  of  the  royal  palaces  and  public  parks,  and 
of  all  public  buildings  not  specially  assigned  to  the  care  of  other  depart- 
ments." 1  It  is  composed  nominally  of  a  First  Commissioner,  the  Prin- 
cipal Secretaries  of  State,  and  the  President  of  the  Board  of  Trade,  but 
is  controlled  in  fact  by  the  First  Commissioner  and  his  permanent 
assistants,  the  First  Commissioner  representing  it  in  Parliament. 

701.  The  Lord  Privy  Seal  exercises  no  important  functions  except 
those  of  keeping  the  great  Seal  of  State  and  aflBixing  it  to  such  public 
documents  as  need  its  formal  attestation;  but  the  oflBce  is  a  'Cabinet 
office.'  The  lightness  of  its  duties  leaves  its  incumbent  the  freer  for  his 
Cabinet  functions  of  counsel.  It  is  a  berth  for  elderly  men  of  mental 
and  political  weight  who  cannot  or  will  not  undertake  onerous  official 
duties. 

702.  The  Chancellor  of  the  Duchy  of  Lancaster  holds  an 
office  whose  duties  (entirely  legal  and  local)  have  all  been  delegated 
by  long-standing  habit  to  a  Vice-Chancellor ;  but  eminent  politicians 
are  often  brought  into  the  Cabinet  through  this  sinecure  Chancellorship 
in  order  that  they  may  give  the  ministry  the  benefit  of  their  advice  and 
countenance. 

703.  Political  Under  Secretaries.  —  There  are  often  associated 
with  the  principal  ministers  of  state  certain  *  political '  Under  Secre- 
taries, whose  function  is  one  of  very  considerable  importance,  A  polit- 
ical Under  Secretary  is  one  who  goes  in  or  out  of  office  with  his  party, 

1  Traill,  p.  152. 


392 


THE  GOVERNMENT  OF  ENGLAND. 


not  having  a  place  in  the  cabinet  but  sharing  its  fortunes  in  the  Com- 
mons. He  is  parliamentary  spokesman  for  his  chief.  If  the  foreign 
minister,  for  instance,  or  any  other  member  of  the  Cabinet,  the  affairs 
of  whose  department  may  be  expected  to  call  forth  frequent  comment 
or  question  in  the  lower  House,  be  a  member  of  the  House  of  Lords, 
he  is  represented  in  the  Commons  by  an  Under  Secretary,  who  there 
speaks  as  the  minister's  proxy.  The  representation  of  the  ministers  in 
both  Houses  is  thus  secured. 

704.  Administration  of  Scotland  and  Ireland.  —  The  affairs 
of  Scotlaud  are  cared  for  through  the  agency  of  a  Lord  Advo- 
cate for  Scotland,  who  is  the  legal  adviser  of  the  government 
concerning  Scotch  interests,  and  a  Secretary  for  Scotland  who 
is  the  intermediary  between  the  Scotch  members  of  Parliament 
and  the  ministry,  and  the  official  spokesman  of  the  ministers 
regarding  Scotch  business  in  the  House  of  Commons.  Officially 
the  Lord  Advocate  ranks  as  a  subordinate  of  the  Secretary  of 
State  for  Home  Affairs.  The  Irish  executive  is,  formally  at 
least,  separate  from  the  English,  being  vested  in  a  Lord  Lieu- 
tenant and  Privy  Council;  but  in  fact  it  is  completely  con- 
trolled by  the  English  Cabinet  through  the  Chief  Secretary  to 
the  Lord  Lieutenant,  who  is  always  a  member  of  the  House  of 
Commons  and,  when  Irish  affairs  are  specially  prominent,  a 
member  of  the  Cabinet  also ;  and  who,  though  in  titular  rank 
a  subordinate  of  the  Lord  Lieutenant,  is,  by  virtue  of  his 
relations  to  the  Cabinet  and  to  Parliament,  in  effect  his  master. 

705.  The  Lord  Chancellor,  the  only  regular  member  of  the  Cab- 
inet whose  duties  I  have  not  yet  indicated,  is  a  judicial  and  legislative 
officer.   His  functions  will  be  mentioned  in  other  connections  (sec.  737). 

706.  The  Cabinet  as  Executive.  — It  would  be  a  great  mis- 
take to  suppose  that,  because  the  Cabinet  is  in  reality  a  com- 
mittee of  the  House  of  Commons,  drawing  all  its  authority  from 
the  confidence  reposed  m  it  by  that  chamber,  it  is  a  mere  com- 
mittee possessing  no  separate  importance  as  the  executive  body 
of  the  kingdom.  In  a  sense  the  ministers  have  inherited  the 
ancient  prerogatives  of  the  Crown;  and  Parliament  is,  to  a 


THE  GOVERNMENT  OF  ENGLAND. 


393 


very  sensible  degree,  dependent  upon  them  for  the  efficacy  of 
the  part  it  is  to  play  in  governing.  Almost  all  important  leg- 
islation waits  for  their  initiative,  and  the  whole  business  of  the 
Houses  to  a  great  extent  depends  upon  them  for  its  progress. 
They  can  make  treaties,  of  whatever  importance,  with  foreign 
countries ;  they  can  shape  the  policy  of  the  mother  country 
towards  her  colonies ;  they  can  take  what  serious  steps  they 
will  with  reference  to  the  government  of  India,  can  move  troops 
and  naval  forces  at  pleasure,  can  make  a  score  of  momentous 
moves  of  policy  towards  the  English  dependencies  and  towards 
foreign  countries,  —  in  the  field,  that  is,  of  many  of  the  largest 
interests  of  the  Empire,  —  which  may  commit  the  country  to 
the  gravest  courses  of  action ;  —  and  all  without  any  previous 
consultation  with  Parliament,  whom  they  serve.  The  House 
of  Commons,  in  brief,  can  punish  but  cannot  prevent  them. 

707.  Parliament :  I.  The  House  of  Commons ;  its  Origi- 
nal Character.  —  The  Parliament  of  the  nineteenth  century 
is,  in  ordinary  speech,  the  House  of  Commons.  When  a  min- 
ister consults  Parliament  he  consults  the  House  of  Commons  ; 
when  the  Queen  dissolves  Parliament  she  dissolves  the  House 
of  Commons.  A  new  Parliament  is  merely  a  new  House  of 
Commons."  ^  Such  has  been  the  evolution  of  English  politics. 
But  the  processes  which  worked  out  this  result  were  almost 
five  centuries  long.  During  a  very  long  period,  Parliament's 
first  and  formative  period,  the  Commons  held  a  position  of 
distinct  and,  so  to  say,  legitimate  subordination  to  the  Lords, 
lay  and  spiritual ;  the  great  constitutional  r6les  were  played 
by  the  king  and  baronage.  The  commoners  in  Parliament 
represented  the  towns,  and  spoke,  for  the  most  part,  at  first, 
only  concerning  the  taxes  they  would  give.  When  the  house 
of  Parliament  called  the  House  of  Commons  first  assumed  a 
distinct  separate  existence,  about  the  middle  of  the  fourteenth 
century  (sec.  671),  it  was  by  no  means  a  homogeneous  body. 

1  Spencer  Walpole,  The  Electorate  and  the  Legislature  (English  Citizen 
Series),  p.  48. 


394 


THE  GOVERNMENT  OF  ENGLAND. 


It  held  both  the  knights  of  the  shires  and  the  burgesses  of  the 
towns ;  and  it  was  a  very  long  time  before  the  knights  forgot 
the  doubt  which  had  at  first  been  felt  as  to  which  house  they 
should  sit  with,  Lords  or  Commons.  They  were  men  of  con- 
sideration in  their  counties  ;  the  only  thing  in  common  between 
them  and  the  men  from  the  towns  was  that  election,  and  not 
hereditary  possessions  or  rank,  was  the  ground  of  their  pres- 
ence in  Parliament.  Long  use,  however,  finally  obscured  such 
differences  between  the  two  groups  of  members  in  the  lower 
house ;  their  interests  were  soon  felt  to  be  common  interests : 
for  the  chief  questions  they  had  a  real  voice  in  deciding  were 
questions  of  taxation,  which  touched  all  alike. 

708.  Historical  Contrasts  between  County  and  Borough 
Representatives.  — The  main  object  of  the  Crown  in  making 
the  Commons  as  representative  as  possible  would  seem  to  have 
been  to  bring  the  whole  nation,  as  nearly  as  might  be,  into  co- 
operation in  support  of  the  king's  government :  and  at  first  the 
lower  house  was  a  truly  representative  body.  The  knights  of 
the  shires  were  elected  "in  the  county  court,  by  the  common 
assent  of  the  whole  country  "  5  the  burgesses  of  the  towns  were 
chosen  by  the  borough  freemen,  a  body  numerous  or  limited 
according  to  the  charter  of  each  individual  town,  but  gener- 
ally sufiiciently  broad  to  include  the  better  class  of  citizens.  It 
was  the  decay  of  the  towns  and  the  narrowing  of  their  fran- 
chises which  made  the  Commons  of  the  first  decades  of  our  own 
century  the  scandalously  subservient,  unrepresentative  Com- 
mons which  had  driven  the  American  colonies  into  revolt.  So 
early  as  the  reign  of  Henry  VL,  in  the  first  half,  that  is,  of  the 
fifteenth  century,  the  franchise  was  limited  in  the  counties  to 
freeholders  whose  landed  property  was  of  an  annual  value  of 
forty  shillings,  and  forty  shilling  freeholders  were  then  men  of 
means  ;  ^  but  this  franchise  remained  unchanged  until  the  parli- 
amentary reforms  of  the  present  century,  and  tended  steadily, 

*  Forty  shillings,  it  is  estimated,  were  equivalent  at  that  time  in  pur- 
chasing value  to  forty  pounds  at  present  ($200). 


THE  GOVERNMENT  OF  ENGLAND.  395 

with  the  advancing  wealth  of  the  country,  and  the  relative 
decrease  in  the  value  of  the  shilling,  to  become  more  liberal, 
more  inclusive.  The  borough  franchise,  on  the  contrary,  went 
all  the  time  steadily  from  bad  to  worse.  It  became  more  and 
more  restricted,  and  the  towns  which  sent  representatives  to 
Parliament  became,  partly  by  reason  of  their  own  decay,  partly 
l)y  reason  of  the  growth  and  new  distribution  of  population  in 
the  kingdom,  less  and  less  fitted  or  entitled  to  represent  urban 
England.  New  boroughs  were  given  representatives  from  time 
to  time ;  but  all  efforts  to  redistribute  representation  had  virtu- 
ally ceased  before  the  dawn  of  the  period  of  that  great  increase 
of  population  and  that  immense  development  of  wealth  and 
industry  which  has  made  modern  England  what  it  is.  The 
towns  which  returned  members  to  the  House  of  Commons  were 
mostly  in  the  southern  counties  where  the  old  centres  of  popu- 
lation had  been.  Gradually  they  lost  importance  as  the  weight 
of  the  nation  shifted  to  the  central  and  western  counties  and 
Liverpool,  Manchester,  and  Birmingham  grew  up,  —  and  not 
their  importance  only,  but  their  inhabitants  as  well.  Some 
fell  into  ruins  and  merged  in  neighboring  properties,  whose 
owners  pocketed  both  them  and  their  parliamentary  franchise ; 
others,  which  did  not  so  literally  decay,  became  equally  subject 
to  the  influence  of  neighbor  magnates  upon  whom  the  voters 
felt  more  or  less  dependent ;  and  at  last  the  majority  of  seats 
in  the  Commons  were  virtually  owned  by  the  classes  repre- 
sented in  the  House  of  Lords. 

The  House  of  Commons  consisted  in  1801  of  658  members,  and  of 
these  425  are  said  to  have  been  returned  "  on  the  nomination  or  on  the 
recommendation  of  252  patrons."  It  is  said,  also,  that  '*  309  out  of  the 
513  members  belonging  to  England  and  Wales  owed  their  election  to 
the  nomination  either  of  the  Treasury  or  of  1G2  powerful  individuals."  i 

709.  Geographical  Relations  of  Boroughs  and  Counties.  — 
Of  course  borough  populations  had  no  part  in  the  election  of  county 
members.    The  counties  represented  in  Parliament  were  rural  areas, 


1  Walpole,  p.  55. 


396 


THE  GOVERNMENT  OF  ENGLAND. 


exclusive  of  the  towns.  Thus  the  county  of  Derby  was,  for  the  pur- 
poses of  parliamentary  representation,  the  county  of  Derby  minus  its 
boroughs. 

710.  Parliamentary  Reform.  —  It  was  to  remedy  this  state 
of  things  that  the  well-known  reforms  of  the  present  century 
were  undertaken.  Those  reforms  have  made  the  House  of 
Commons  truly  representative  and  national :  and  in  making  it 
national  have  made  it  dominant.  In  1832  there  was  made  a 
wholesale  redistribution  of  seats  and  a  complete  reformation 
of  the  franchise.  The  decayed  towns  were  deprived  of  their 
members,  and  the  new  centres  of  population  were  accorded 
adequate  representation.  The  right  to  vote  in  the  counties 
was  extended  from  those  who  owned  freeholds  to  those  who 
held  property  on  lease  and  those  who  held  copyhold  estates,  ^ 
and  to  tenants  whose  holdings  were  of  the  clear  annual  value 
of  fifty  pounds.  The  borough  franchise  was  put  upon  the 
uniform  basis  of  householders  whose  houses  were  worth  not 
less  than  ten  pounds  a  year.  This  was  putting  representation 
into  the  hands  of  the  middle,  well-to-do  classes ;  and  with 
them  it  remained  until  1867.  In  1867  another  redistribution 
of  seats  was  effected,  which  increased  the  number  of  Scotch 
members  from  fifty-four  to  sixty  and  made  other  important  re- 
adjustments of  representation.  The  franchise  was  at  the 
same  time  very  greatly  widened.  In  the  boroughs  all  house- 
holders and  every  lodger  whose  lodgings  cost  him  ten  pounds 
annually  were  given  the  right  to  vote;  and  in  the  counties, 
besides  every  forty  shilling  freeholder,  every  copyholder  and 
leaseholder  whose  holding  was  of  the  annual  value  of  five 
pounds,  and  every  householder  whose  rent  was  not  less  than 
twelve  pounds  a  year.  Thus  representation  stood  for  almost 
twenty  years.  Finally,  in  1884,  the  basis  of  the  present  fran- 
chise was  laid.    The  qualifications  for  voters  in  the  counties 

1  Copyhold  estates  are  estates  held  by  the  custom  of  the  manor  in 
which  they  lie,  a  custom  evidenced  by  a  *  copy '  of  the  rolls  of  the  Manor 
Court. 


THE  GOVERNMENT  OF  ENGLAND. 


397 


were  made  the  same  as  the  qualifications  fixed  for  borough 
electors  by  the  law  of  1867,  and  over  two  millions  and  a  half 
of  voters  were  thus  added  to  the  active  citizenship  of  the 
country.  There  is  now  a  uniform  ^household  and  lodger  fran- 
chise '  throughout  the  kingdom. 

711.  'Occupier'  is  used  in  England  as  synonymous  with  the  word 
lodger.  The  '  occupation '  requisite  for  the  exercise  of  the  franchise 
must  be  of  a  "  clear  annual  value  of  £10."  Occupation  "  by  virtue  of 
any  office,  service,  or  employment,"  is  considered,  for  the  purpose  of 
the  franchise,  equivalent  to  occupation  for  which  rent  is  paid,  if  the 
rent  would  come  to  the  required  amount,  if  charged. 

712.  In  1885  another  great  Redistribution  Act  was  passed, 
which  merged  eighty-one  English,  two  Scotch,  and  twenty-two 
Irish  boroughs  in  the  counties  in  which  they  lie,  for  purposes 
of  representation;  gave  additional  members  to  fourteen 
English,  three  Scotch,  and  two  Irish  boroughs ;  and  created 
thirty-three  new  urban  constituencies.  The  greater  towns 
which  returned  several  members  were  cut  up  into  single-mem- 
ber districts,  and  a  like  arrangement  was  effected  in  the 
counties,  which  were  divided  into  electoral  districts  to  each  of 
which  a  single  representative  was  assigned.  ^  These  changes 
were  accompanied  by  an  increase  of  twelve  in  the  total  number 
of  members.  Through  the  redistribution  of  seats  in  1832  and 
1867  the  number  had  remained  658  j  it  is  now  670. 

713.  The  following  is  an  analysis  of  the  present  membership  of  the 
House  of  Commons  given  in  the  Statesman's  Year  Book  for  1887 :  ^ 
the  English  counties  return  253  members,  the  English  boroughs  237, 
the  English  universities  5 ;  Scotch  counties  39,  boroughs  31,  universi- 
ties 2;  Irish  counties  85,  boroughs  16,  universities  2.  Totals:  counties 
377,  boroughs  284,  universities  9, 

714.  One  signal  feature  of  the  reforms  of  1884-85  was  that  they 
applied  to  Scotland  and  Ireland  as  well  as  to  England  and  Wales, 
Earlier  Acts  had  applied  only  to  England  and  Wales,  special  Acts 

1  This  was  establishing  what  the  French,  as  we  have  seen  (sec.  315), 
would  call  scrutin  d'arrondissement. 

2  Where  other  data  also  will  be  found. 


398 


THE  GOVERNMENT  OF  ENGLAND. 


governing  the  franchise  and  representation  in  Ireland  and  Scotland. 
Tlie  Irish  delegation  in  the  House  of  Commons  is  now  for  the  first  time 
truly  representative  of  the  Irish  people. 

715.  The  legislation  of  1885,  by  dividing  the  greater  town  into  single 
member  constituencies,  abolished  the  '  three-cornered  constituencies  ' 
which  had  been  devised  in  1867  for  purposes  of  minority  representa- 
tion. Voters  in  places  which  returned  more  than  two  members  were 
allowed  one  vote  less  apiece  in  parliamentary  elections  than  the  num- 
ber of  members  to  be  chosen.  Thus,  if  any  place  returned  four  mem- 
bers, for  example,  each  voter  was  entitled  to  vote  for  three  and  no 
more :  it  being  hoped  that  the  minority  would  by  proper  management 
under  this  plan  be  able  to  elect  one  out  of  the  four.  The  plan  was  not 
found  to  work  well  m  practice,  and  has  accordingly  been  abandoned. 

716.  Election  and  Term  of  the  Commons.  —  Members  of 
the  House  of  Commons  are  elected,  by  secret  ballot,  for  a  term 
of  seven  years.  Any  full  citizen  is  eligible  for  election  except 
priests  and  deacons  of  the  Church  of  England,  ministers  of 
the  Church  of  Scotland,  Koman  Catholic  priests,  and  sheriifs 
and  other  returning  officers,  —  and  except  also,  English  and 
Scotch  peers.  Irish  peers  are  eligible  and  have  often  sat  in 
the  House.  ^  The  persons  thus  excepted,  —  all  save  the  peers, 
at  least,  —  can  neither  sit  nor  vote. 

717.  As  a  matter  of  fact  no  House  of  Commons  has  ever  lived  its 
full  term  of  seven  years.  A  dissolution,  for  the  purpose  of  a  fresh 
appeal  to  tlie  constituencies,  has  always  cut  it  off  before  its  statutory 
time.  The  average  duration  of  Parliaments  has  been  less  than  four 
years.  The  longest  Parliament  of  the  present  century  (elected  in  1820) 
lived  six  years,  one  month,  and  nine  days. 

718.  The  use  of  the  secret  ballot  does  not  rest  upon  any  permanent 
statute.  In  1872  its  use  was  voted  for  one  year;  and  ever  since  the 
provision  has  been  annually  renewed. 

719.  There  is  no  property  qualification  for  election  to  the  House 
now,  as  there  was  formerly ;  but  the  members  receive  no  pay  for  their 
services;  and,  unless  their  constituents  undertake  to  support  them, — 
as  was  done  in  tlie  early  history  of  Parliament,  and  has  been  done  again 
in  some  recent  instances,  —  this  fact  constitutes  a  virtual  income 
qualification. 

1  Lord  Palmerston,  for  example,  was  an  Irish  peer. 


THE  GOVERNMENT  OF  ENGLAND. 


399 


720.  Summons,  Electoral  Writ,  Prorogation.  —  iSTo  stand- 
ing statutes  govern  the  time  for  electing  Parliaments.  Parlia- 
ment assembles  upon  summons  from  the  Crown  (which,  like 
all  other  acts  of  the  Sovereign,  now  really  emanates  from  the 
ministers)  ;  and  the  time  for  electing  members  is  set  by  writs 
addressed  to  the  sheriffs,  as  of  old  (sec.  667).  Parliament  is 
also  ^prorogued,'  (adjourned  for  the  session)  b}'  the  Sovereign 
(that  is,  the  Cabinet)  ;  and  assembled  again,  after  recess,  by 
special  summons. 

721.  The  summons  for  a  new  Parliament  must  be  issued  at  least 
thirty-five  days  before  the  day  set  for  its  assembling  ;  the  summons  to  a 
prorogued  Parliament  at  least  fourteen  days  beforehand.  It  is  now  the 
invariable  custom  to  assemble  Parliament  once  every  year  about  the 
middle  of  February,  and  to  keep  it  in  session  from  that  time  till  about 
the  middle  of  August. 

722.  If  a  seat  fall  vacant  during  a  session,  a  writ  is  issued  for  an 
election  to  fill  it  upon  motion  of  the  House  itself ;  if  a  vacancy  occur 
during  a  recess,  the  writ  is  issued  at  the  instance  of  the  Speaker  of  the 
House. 

723.  Since  1867  the  duration  of  Parliament  has  not  been  liable  to 
be  affected  by  a  demise  of  the  Crown  ;  before  1695  Parliament  died 
with  the  monarch.  In  that  year  it  was  enacted  that  Parliament  should 
last  for  six  months  after  the  demise  of  the  Crown,  if  not  sooner  dis- 
solved by  the  new  Sovereign.  Parliament,  it  is  now  provided,  must 
assemble  immediately  upon  the  death  of  tlie  Sovereign.  If  the  Sover- 
eign's death  take  place  after  a  dissolution  and  before  the  day  fixed  for 
the  convening  of  the  new  Parliament,  the  old  Parliament  is  to  come 
together  for  six  months,  if  necessary,  but  for  no  longer  term. 

724.  Organization  of  the  House.  —  The  Commons  elect 
their  own  Speaker  (Spokesman)  and  other  officers.  The  busi- 
ness of  the  House  is,  as  we  have  seen  (sec.  689),  quite  abso- 
lutely under  the  direction  of  its  great  committee,  the  ^Ministry. 
Certain  days  of  the  week  are  set  apart  by  the  rules  for  the 
consideration  of  measures  introduced  by  private  members,  but 
most  of  the  time  of  the  House  is  devoted  to  ^government 
bills.'  The  majority  put  themselves  in  the  hands  of  their 
party  leaders,  the  ministers,  and  the  great  contests  of  the 


400 


THE  GOVERNMENT  OF  ENGLAND. 


session  are  between  the  minority  on  one  side  of  the  chamber 
and  the  ministerial  party,  or  majority,  on  the  other  side. 

725,  Down  the  centre  of  the  hall  in  which  the  House  sits  runs  a  very 
broad  aisle.  The  Speaker's  seat  stands,  upon  an  elevated  place,  at  the 
further  end  of  this  aisle,  below  it  the  seats  and  tables  of  the  clerks  and 
a  great  table  stretching  some  distance  down  the  aisle,  for  the  reception 
of  the  Sergeant's  mace  and  various  books,  petition  boxes,  and  papers. 
The  benches  on  either  side  of  the  aisle  face  each  other.  Those  which 
rise,  in  tiers,  to  the  Speaker's  right  are  occupied  by  the  majority,  the 
ministers,  their  leaders,  sitting  on  the  front  bench  by  the  great  table. 
This  front  bench  is  accordingly  called  the  *  Treasury  Bench,'  —  the 
Treasury  being  the  leading  Cabinet  oflSce.  On  the  benches  which  rise 
to  the  Speaker's  left  sit  the  minority,  their  leaders  also  (the  *  leaders  of 
the  Opposition,'  —  the  minority  being  expected,  generally  with  reason, 
to  be  opposed  to  all  ministerial  proposals)  on  the  front  bench  by  the 
table,  and  so  directly  facing  the  ministers,  only  the  table  and  the  aisle 
intervening. 

726.  II.    The  House  of  Lords:  Its  Composition.  —  The 

House  of  Lords  consisted  during  the  session  of  1888  of  four 
hundred  and  seventy-six  English  hereditary  peers  (  Dukes, 
Marquises,  Earls,  Viscounts,  Barons) ;  the  two  archbishops 
and  twenty-four  bishops,  holding  their  seats  by  virtue  of  their 
offices;  sixteen  Scottish  representative  peers  elected  by  the 
whole  body  of  Scotch  peers,  of  whom  there  are  eighty-five,  to 
sit  for  the  term  of  Parliament ;  twenty-eight  Irish  peers  elected 
by  the  peers  of  Ireland,  of  whom  there  are  one  hundred  and 
seventy-seven,  to  sit  for  life;  and  three  judicial  members 
known  as  Lords  of  Appeal  in  Ordinary  (sees.  728,  735,  736), 
sitting,  as  life-peers  only,  by  virtue  of  their  office. 

There  is  no  necessary  limitation  to  the  number  of  hereditary  English 
peers.  Peers  can  be  created  at  will  by  the  Crown  (that  is,  by  the  min- 
istry), and  their  creation  is  in  fact  frequent.  Two-thirds  of  the  present 
number  of  peers  hold  peerages  created  in  the  present  century.  Thirteen 
were  created  in  the  year  1886. 

The  number  of  Scotch  and  Irish  peers  is  limited  by  statute. 

The  House  of  Lords  is  summoned  to  its  sessions  when  the  House  of 
Commons  is  and  the  two  must  always  be  summoned  together. 


THE  GOVERNMENT  OF  ENGLAND. 


401 


727.  Function  of  the  House  of  Lords  in  Legislation.  — 

The  House  of  Lords  is,  in  legal  theory,  coequal  in  all  respects 
with  the  House  of  Commons  ;  but,  in  fact,  its  authority  is, 
as  I  have  already  more  than  once  said  (sees.  677,  686,  707), 
very  inferior.  Its  consent  is  as  necessary  as  that  of  the  House 
of  Commons  to  every  act  of  legislation ;  but  it  is  not  suffered 
to  withhold  that  consent  when  the  House  of  Commons  speaks 
emphatically  and  with  the  apparent  concurrence  of  the  nation 
on  any  matter :  it  is  then  a  matter  of  imperative  policy  with 
it  to  acquiesce.  Its  legislative  function  has  been  well  summed 
up  as  a  function  of  cautious  revision.  It  can  stand  fast  against 
the  Commons  only  when  there  is  some  doubt  as  to  the  will  of 
the  people. 

728.  The  House  of  Lords  as  a  Supreme  Court.  — The 

House  of  Lords  is  still,  however,  in  fact  as  well  as  in  form, 
the  supreme  court  of  appeal  in  England,  though  it  has  long 
since  ceased  to  exercise  its  judicial  functions  (inherited  from 
the  Great  Council  of  Norman  times)  as  a  body.  Those  func- 
tions are  now  always  exercised  by  the  Lord  Chancellor,  who  is 
ex-offido  president  of  the  House  of  Lords,  and  three  Lords  of 
Appeal  in  Ordinary,  who  are  learned  judges  appointed  as  life- 
peers,  specially  to  perform  this  duty.  These  special  'Law 
Lords '  are  assisted  from  time  to  time  by  other  lords  who  have 
served  as  judges  of  the  higher  courts  or  who  are  specially 
learned  in  the  law. 

729.  Legislation,  therefore,  is  controlled  by  the  House  of 
Commons,  jthe  interpretation  of  the  law  by  the  judicial  mem- 
bers of  the  House  of  Lords.  The  House  of  Lords  shares  with 
the  popular  chamber  the  right  of  law-making,  but  cannot  assert 
that  right  in  the  face  of  a  x^ronounced  public  opinion.  The 
Sovereign  has  the  right  to  negative  legislation ;  but  the  Sov- 
ereign is  in  the  hands  of  the  ministers,  and  the  ministers  are  in 
the  hands  of  the  Commons ;  and  legislation  is  never  negatived. 

730.  The  Constitution  of  England  consists  of  law  and  pre- 
cedent.   She  has  great  documents  like  Magna  Charta  at  the 


402 


THE  GOVERNMENT  OF  ENGLAND. 


foundation  of  lier  institutions ;  but  Magna  Charta  was  only  a 
royal  ordinance.  She  has  great  laws  like  the  Bill  of  Eights  at 
the  centre  of  her  political  system ;  but  the  Bill  of  Rights  was 
only  an  act  of  Parliament.  She  has  no  written  constitution, 
and  Parliament  may,  in  theory,  change  the  whole  structure  and 
principle  of  her  institutions  by  mere  Bill.  But  in  fact  Parlia- 
ment dare  not  go  faster  than  public  opinion:  and  public  opin- 
ion in  England  is  steadily  and  powerfully  conservative. 

That  is  a  very  impressive  tribute  which  Sir  Erskine  May  feels  able 
soberly  to  pay  to  the  conservatism  of  a  people  living  under  such  a  form 
of  government  when  he  says,  "  Not  a  measure  has  been  forced  upon  Par- 
liament which  the  calm  judgment  of  a  later  time  has  not  since  approved ; 
not  an  agitation  has  failed  which  posterity  has  not  condemned."  ^ 

731.  The  Courts  of  Law.  —  The  administration  of  justice 
has  always  been  greatly  centralized  in  England.  From  a  very 
early  day  judges  of  the  king's  courts  have  'gone  on  circuit,' 
holding  their  assizes  (sittings)  in  various  parts  of  the  country, 
in  order  to  save  suitors  the  vexation  and  expense  of  haling 
their  adversaries  always  before  the  courts  in  London.  But 
these  circuit  judges  travelled  from  place  to  place  under  special 
commissions  from  the  central  authorities  of  the  state,  and  had 
no  permanent  connections  with  the  counties  in  which  their 
assizes  were  held  :  they  came  out  from  London,  were  controlled 
from  London,  and,  their  circuit  work  done,  returned  to  London. 
It  was,  moreover,  generally  only  the  three  courts  of  Common 
Law  (the  Court  of  King's  Bench,  the  Court  of  Common  Pleas, 
and  the  Court  of  Exchequer)  that  sent  their  judges  on  circuit; 
the  great,  overshadowing  Court  of  Chancery,  which  arrogated 
so  wide  a  jurisdiction  to  itself,  drew  all  its  suitors  to  its  own 
chambers  in  Westminster.  The  only  thing  lacking  to  perfect 
the  centralization  was  uniformity  of  organization  and  a  less 
haphazard  distribution  of  jurisdiction  among  the  various  courts. 
This  lack  was  supplied  by  a  great  Judicature  Act  passed  in 

1  Constitutional  History,  Vol.  II.,  p.  243  (Am.  ed.,  1863). 


THE  GOVERNMENT  OF  ENGLAND. 


403 


1873.  By  that  Act  (wliich  went  into  force  on  the  1st  Xovem- 
ber,  1875),  and  subsequent  additional  legislation  extending  to 
1877,  the  courts  of  law,  which  had  grown,  as  we  have  seen 
(sec.  666),  out  of  that  once  single  body,  the  ancient  Permanent 
Council  of  the  Norman  and  Plantagenet  kings,  were  at  last 
reintegrated,  made  up  together  into  a  co-ordinated  whole. 

732.  Judicial  Reform  :  the  Reorganization  of  1873-77.  — 
These  measures  of  reorganization  and  unification  had  been  pre- 
ceded, in  1846,  by  a  certain  degree  of  decentralization.  Cer- 
tain so-called  County  Courts  were  then  created,  which  are  local, 
not  peripatetic  Westminster,  tribunals,  and  which  have  to  a 
very  considerable  extent  absorbed  the  assize  business,  though 
their  function,  theoretically,  is  only  to  assist,  not  to  supplant, 
the  assizes.  Now,  therefore,  the  general  outlines  of  the  judi- 
cial system  are  these.  The  general  courts  of  the  kingdom  are 
combined  under  the  name.  Supreme  Court  of  Judicature. 
This  court  is  divided  into  two  parts,  which  are  really  two  quite 
distinct  courts ;  namely,  the  High  Court  of  Justice  and  the 
Court  of  Appeal.  Over  all,  as  court  of  last  resort,  still  stands 
the  House  of  Lords.  The  High  Court  of  Justice  acts  in  three 
divisions,  a  Chancery  Division,  a  Queen's  Bench  Division,  and 
a  Probate,  Divorce,  and  Admiralty  Division ;  and  these  three 
divisions  constitute  the  ordinary  courts  of  law,  inheriting  the 
jurisdictions  suggested  by  their  names.  Prom  them  an  appeal 
lies  to  the  Court  of  Appeal ;  from  the  Court  of  Appeal  to  the 
House  of  Lords.  The  County  Courts  stand  related  to  the 
system  as  the  Assizes  do. 

733.  "  The  Chancery  Division  has  five  judges  besides  its  pres- 
ident, the  Chancellor;  the  Queen's  Bench  Division  has  fifteen  judges, 
of  whom  one,  the  Lord  Chief  Justice,  is  its  president ;  the  Probate, 
Divorce,  and  Admiralty  Division  has  but  two  judges,  of  whom  one 
presides  over  the  other."  ^  This  arrangement  into  divisions  is  a  mere 
matter  of  convenience  ;  no  very  strict  distinctions  as  to  jurisdiction  are 
preserved;  and  any  changes  that  the  judges  think  desirable  may  be 

1  F.  W.  Maitland,  Justice  and  Police  (English  Citizen  Series),  pp.  43,  44. 


404 


THE  GOVERNMENT  OF  ENGLAND. 


made  by  an  Order  in  Council.  Thus  an  Exchequer  Division  and  a 
Common  Pleas  division,  which  at  first  existed,  in  preservation  of  the  old 
lines  of  organization,  were  abolished  by  such  an  Order  in  December, 
1880.  The  judges  assigned  to  the  various  Divisions  do  not  necessarily 
or  often  sit  together.  Cases  are  generally  heard  before  only  one  judge ; 
so  that  the  High  Court  may  be  said  to  have  the  effective  capacity  of 
twenty-three  courts,  its  total  number  of  judges  being  twenty-three. 
Only  when  hearing  appeals  from  inferior  tribunals,  or  discharging  any 
other  function  different  from  the  ordinary  trial  of  cases,  must  two  or 
more  judges  sit  together. 

734.  The  Court  of  Appeals  may  hear  appeals  on  questions  both 
of  law  and  of  fact.  It  consists  of  the  Master  of  the  Rolls  and  five  Lords 
Justices,  who  may  be  said  to  constitute  its  permanent  and  separate 
bench,  and  of  the  presidents  of  the  three  Divisions  of  the  High  Court 
who  may  be  called  its  occasional  members.  Three  judges  are  necessary 
to  exercise  its  powers,  and,  in  practice,  its  six  permanent  members 
divide  the  work,  holding  the  court  in  two  independent  sections. 

735.  The  House  of  Lords  may  sit,  when  acting  as  a  court,  when 
Parliament  is  not  in  session,  after  a  prorogation,  that  is,  or  even  after  a 
dissolution :  for  the  House  of  Lords  when  sitting  as  a  court  is  like  its  legis- 
lative self  only  in  its  modes  of  procedure.  In  all  other  respects  it  is 
totally  unlike  the  body  which  obeys  the  House  of  Commons  in  law- 
making. It  is  constituted  always,  as  a  court,  of  the  Lord  Chancellor  and 
at  least  two  of  the  Lords  of  Appeal  in  Ordinary  of  whom  I  have 
spoken  (sec.  726)  ;  only  sometimes  are  there  added  to  these  a  third  Lord 
of  Appeal  in  Ordinary,  an  ex-Lord  Chancellor,  or  one  or  more  of  such 
judges  or  ex-judges  of  the  higher  courts  as  may  have  found  their  way 
to  peerages.    Other  members  never  attend  ;  or  attending,  never  vote. 

736.  A  Judicial  Committee  of  the  Privy  Coimcil,  of  which 
also  the  Lord  Chancellor  is  a  member,  and  which  is  presently  to  con- 
sist mainly  of  the  same  Lords  of  Appeal  in  Ordinary  that  act  in  judicial 
matters  as  the  House  of  Lords,  constitutes  a  court  of  last  resort  for 
India,  the  Colonies,  the  Channel  Islands,  and  the  Isle  of  Man. 

737.  The  Lord  Chancellor  is  the  most  notable  officer  in  the  whole 
system.  He  is  president  of  the  House  of  Lords,  of  the  Court  of  Appeal, 
of  the  High  Court  of  Justice,  and  of  the  Chancery  Division  of  the  High 
Court,  and  he  is  a  member  of  the  Judicial  Committee  of  the  Privy 
Council;  and  he  actually  sits  in  all  of  these  except  the  High  Court, — 
in  the  House  of  Lords  and  the  Privy  Council  always,  in  the  Court  of 
Appeal  often.  More  singular  still,  he  is  the  political  officer  of  the  law: 
he  is  a  member  always  of  the  Cabinet,  and  like  the  other  members, 


THE  GOVERNMENT  OF  ENGLAND. 


405 


belongs  to  a  party  and  goes  in  or  out  of  office  according  to  the  favor  of 
the  House  of  Commons,  exercising  while  in  office,  in  some  sense,  the 
functions  of  a  Minister  of  Civil  Justice.^ 

738.  Civil  Cases  are  heard  either  by  judges  of  the  High 
Court  in  London,  by  judges  of  that  court  sitting  on  circuit  in 
the  various  'assize  towns'  of  the  county,  of  which  there  is 
always  at  least  one  for  each  county,  or  by  the  new  County 
Courts  created  in  1846,  which  differ  from  the  old  county  courts, 
long  since  decayed  and  now  deprived  of  all  judicial  functions, 
both  in  their  organization  and  in  their  duties.  They  consist, 
not  of  the  sheriff  and  all  the  freemen  of  the  shire,  but  of  single 
judges,  holding  their  offices  during  good  behavior,  assisted  by 
permanent  ministerial  officers,  and  exercising  their  jurisdiction 
not  over  counties  but  in  districts  much  smaller  than  the  coun- 
ties. They  are  called  county  courts  only  by  way  of  preserving 
an  ancient  and  respected  name. 

739.  The  County  Courts  have  jurisdiction  in  all  cases  of  debt  or 
damage  where  the  sura  claimed  does  not  exceed  £50,  and  in  certain 
equity  cases  where  not  more  than  £500  is  involved —  except  that  cases 
of  slander,  libel,  seduction,  and  breach  of  promise  to  marry,  as  well  as 
all  matrimonial  cases  are  withheld  from  them.  At  least,  such  is  their 
jurisdiction  in  rough  outline.  A  full  account  would  involve  many  de- 
tails ;  for  it  has  been  the  tendency  of  all  recent  judicial  legislation  in 
England  to  give  more  and  more  business,  even  of  the  most  important 
kind,  to  these  Courts.  Their  present  importance  may  be  judged  from 
the  fact,  stated  by  Mr.  Maitland,  that  "  most  of  the  contentious  litiga- 
tion in  England  is  about  smaller  sums  than  "  £50. 

740.  A  judge  of  the  High  Court  may  send  down  to  a  county  court, 
upon  the  application  of  either  party,  cases  of  contract  in  which  the  sum 
claimed  does  not  exceed  £100.  Any  case,  however  small  the  pecuniary 
claim  involved,  may  be  removed  from  the  county  to  the  High  Court  if 
the  judge  of  the  county  court  will  certify  that  important  principles  of 
law  are  likely  to  arise  in  it,  or  if  the  High  Court  or  any  judge  thereof 
deem  it  desirable  that  it  should  be  removed.  Appeals  from  a  county 
court  to  the  High  Court  are  forbidden  in  most  cases  in  which  less  than 
£20  is  involved. 

1  Maitland,  p.  68. 


406 


THE  GOVERNMENT  OF  ENGLAND. 


741.  The  county  court  system  rests  upon  the  basis  of  a  division  of 
the  country  into  fifty-six  circuits.  All  but  one  or  two  of  these  include 
several  '  districts'  —  the  districts  numbering  about  501.  Each  district 
has  its  own  separate  court,  with  its  own  offices,  registrar,  etc. ;  but  the 
judges  are  appointed  for  the  circuits,  —  one  for  each  circuit.  They  are 
appointed  by  the  Lord  Chancellor  from  barristers  of  seven  years'  stand- 
ing.i 

742.  Juries  are  falling  more  and  more  into  disuse  in  England  in 
civil  cases.  In  all  the  more  important  causes,  outside  the  Chancery 
Division,  whose  rule  of  action,  like  that  of  the  old  Chancery  Court,  is 
*no  jury,'  a  jury  may  be  impanelled  at  the  desire  of  either  party;  but 
many  litigants  now  prefer  to  do  without,  —  especially  in  the  County 
Courts,  where  both  the  facts  and  the  law  are  in  the  vast  majority  of 
cases  passed  upon  by  the  judge  alone,  without  the  assistance  of  the 
jury  of  five  which  might  in  these  courts  be  summoned  in  all  cases  of 
above  £20  value. 

743.  Criminal  Cases  are  tried  either  before  the  county  Jus- 
tices of  the  Peace,  who  are  unpaid  officers  appointed  by  the 
Chancellor  upon  the  recommendation  of  the  Lords  Lieutenant 
of  the  Counties ;  before  borough  Justices,  who  are  paid  judges 
much  like  all  others ;  or  before  judges  of  the  High  Court  on 
circuit.  The  jurisdiction  of  the  Justices  may  be  said  to  include 
all  but  the  gravest  offences,  all  but  those,  namely,  which  are 
punishable  by  death  or  by  penal  servitude,  and  except,  also, 
perjury,  forgery,  bribery,  and  libel.  There  are  many  Justices 
for  each  county,  there  being  no  legal  limit  to  their  number; 
and  they  exercise  their  more  important  functions  at  general 
Quarter  Sessions,  at  general  sessions,  that  is,  held  four  times 
yearly.  The  criminal  assizes  of  the  High  Court  also  are  held 
four  times  a  year.  All  criminal  cases,  except,  of  course,  those 
of  the  pettiest  character,  such  as  police  cases,  are  tried  before 
juries. 

"About  one-half  of  the  criminal  trials,"  it  is  stated,^  "take  place  at 
county  sessions,  about  one-fourth  at  borough  sessions,  the  rest  at  Assizes 
or  the  Central  Criminal  Court,"  the  great  criminal  court  of  London. 

1  The  various  Acts  affecting  the  county  courts  were  amended  and  con- 
solidated by  the  County  Courts  Act,  1888.  2  Maitland,  p.  86. 


THE  GOVERNMENT  OF  ENGLAND. 


407 


744.  Quarter  and  Petty  Sessions.  —  For  the  exercise  of  their  more 
important  judicial  functions  the  Justices  meet  quarterly,  in  Quarter 
Sessions ;  but  for  minor  duties  in  wliicli  it  is  not  necessary  for  more 
than  two  Justices  to  join,  there  are  numerous  Petty  Sessions  lield  at 
various  points  in  the  counties.  Each  county  is  divided  by  its  Quarter 
Sessions  into  petty  sessional  districts,  and  every  neighborhood  is  given 
thus  its  own  court  of  Petty  Sessions,  —  from  which  in  almost  all  cases 
an  appeal  lies  to  Quarter  Sessions.  Thus  the  important  function  of 
licensing  (sec.  771)  is  exercised  by  Petty  Sessions,  subject  to  appeal  to 
the  whole  bench  of  Justices. 

745.  The  Justices  of  the  Peace  were,  as  we  shall  see  more  partic- 
ularly in  other  connections  (sees.  754-757),  the  general  governmental 
authorities  of  the  counties,  until  the  reform  of  local  government  effected 
in  1888,  exercising  functions  of  the  most  various,  multifarious,  and 
influential  sort.  They  are  generally  country  gentlemen  of  high  stand- 
ing in  their  counties,  and  serve,  as  already  stated,  without  pay.  They 
are  appointed,  practically,  for  life.  The  'Commission  of  the  Peace,'  — 
the  commissioning,  that  is,  of  Justices  of  the  Peace,  —  originated  in 
the  fourteenth  century,  and  has  had  a  long  history  of  interesting  devel- 
opment. Considering  the  somewhat  autocratic  nature  of  the  office  of 
Justice,  it  has  been,  on  the  whole,  exercised  with  great  wisdom  and 
public  spirit,  and  during  most  periods  with  extraordinary  moderation, 
industry,  and  effectiveness. 

746.  The  duties  which  Americans  associate  with  the  office  of  Justice 
of  the  Peace  are  exercised  in  England,  not  by  the  bench  of  Justices 
sitting  in  Quarter  Sessions, —  they  then  constitute,  as  we  have  seen,  a 
criminal  court  of  very  extensive  jurisdiction,  —  but  by  the  Justices  singly, 
sitting  either  formally  or  informally.  A  single  Justice  may  conduct 
the  preliminary  examination  of  a  person  charged  with  crime,  and  may 
commit  for  trial  if  reasonable  ground  of  suspicion  be  proved.  A  single 
Justice  also  can  issue  search  warrants  to  the  constabulary  for  the  detec- 
tion of  crime,  etc. 

747.  Police.  —  The  police  force,  or,  in  more  English  phrase, 
the  constabulary,  of  the  kingdom  is  overseen  from  London  by 
the  Home  Office,  which  makes  all  general  rules  as  to  its  dis- 
cipline, pay,  etc.,  appoints  royal  inspectors,  and  determines, 
under  the  Treasury,  the  amount  of  state  aid  to  be  given  to  the 
support  of  the  forces ;  but  all  the  real  administering  of  the 
system  is  done  by  the  local  authorities.    In  the  Counties  a 


408 


THE  GOVERKMENT  OF  EKGLAND. 


joint  Committee  of  Quarter  Sessions  and  the  County  Council 
appoint  the  Chief  Constable,  who  appoints  and  governs  the 
force  with  powers  of  summary  dismissal  and  punishment,  but 
who  acts  in  all  things  subject  to  the  governing  control  of  the 
Committee.  In  those  towns  which  undertake  to  maintain  a 
force  distinct  from  that  of  the  County  the  Head  Constable  is 
chosen  by  the  town  authorities  and  the  direction  of  the  force 
is  superintended  by  a  '  Watch  Committee '  of  the  Town  Coun- 
cil. London,  which  employs,  it  is  stated,  one-third  of  the  en- 
tire police  force  of  the  kingdom,  has  been  given  a  special, 
exceptional  system  of  its  own.  The  city  police  are  governed 
by  a  Commissioner  and  two  Assistant  Commissioners  who  are 
appointed  by  the  Home  Secretary  and  serve  directly  under  his 
authority. 

The  police  throughout  the  country  are  given  something  like  military 
drill  and  training,  the  organization  being  made  as  perfect,  the  training 
as  thorough,  and  the  discipline  as  effective  as  possible.  Ex-army  offi- 
cers are  preferred  for  the  office  of  Chief  Constable. 

II.  Local  Government. 

748.  Complex  Character  of  Local  Government  in  England. 

—  The  subject  of  local  government  in  England  is  one  of  ex- 
treme complexity  and,  therefore,  for  my  present  purpose  of 
brief  description,  one  of  extreme  difficulty.  So  perfectly  un- 
systematic, indeed,  are  the  provisions  of  English  law  in  this 
field  that  most  of  the  writers  who  have  undertaken  to  expound 
them  —  even  to  English  readers  —  have  seemed  to  derive  a 
certain  zest  from  the  despairful  nature  of  their  task  —  a  sort 
of  forlorn-hope  enthusiasm.  The  institutions  of  local  govern- 
ment in  England  have  grown  piece  by  piece  as  other  English 
institutions  have  grown,  and  not  according  to  any  complete  or 
logical  plan  of  statutory  construction.  They  are  patch-work, 
not  symmetrical  net-work,  and  the  patches  are  of  all  sizes  and 
colors. 


THE  GOVERNMENT  OF  ENGLAND. 


409 


"For  almost  every  new  administrative  function,"  complains  one  of 
the  recent  handbooks  on  the  subject,  "  the  Legislature  has  provided  a 
new  area  containing  a  new  constituency,  who  by  a  new  method  of  elec- 
tion choose  candidates  who  satisfy  a  new  qualification,  to  sit  upon  a  new 
board,  during  a  new  term,  to  levy  a  new  rate  [tax],  and  to  spend  a 
good  deal  of  the  new  revenues  in  paying  new  officers  and  erecting  new 
buildings."  ^ 

.749.  It  has  been  the  habit  of  English  legislators,  instead  of 
perfecting,  enlarging,  or  adapting  old  machinery,  to  create  all 
sorts  of  new  pieces  of  machinery  with  little  or  no  regard  to 
their  fitness  to  be  combined  with  the  old  or  with  each  other. 
The  Local  Government  Act  of  1888  represents  the  first  delib- 
erate attempt  at  systematization ;  but  even  that  Act  does  not 
effect  system,  and  itself  introduces  additional  elements  of  con- 
fusion by  first  adopting  another  Act  (the  Municipal  Corpora- 
tions Act  of  1882)  as  its  basis  and  then  excepting  particular 
provisions  of  that  Act  and  itself  substituting  others  in  respect, 
not  of  all,  but  of  some  of  the  local  administrative  bodies  meant 
to  be  governed  by  it.  It  would  seem  as  logical  a  plan  of  de- 
scription as  any,  therefore,  to  discuss  the  older  divisions  and 
instrumentalities  first  and  then  treat  afterwards  of  more  recent 
legislative  creations  as  of  modifications  —  of  however  hap- 
hazard a  kind  —  of  these. 

750.  General  Characterization. — In  general  terms,  then, 
it  may  be  said,  that  throughout  almost  the  whole  of  English 
history,  only  the  very  earliest  periods  being  excepted,  counties 
and  towns  have  been  principal  units  of  local  government ;  that 
the  parishes  into.which  the  counties  have  been  time  out  of  mind 
divided,  though  at  one  time  of  very  great  importance  as  admin- 
istrative centres,  were  in  course  of  time  in  great  part  swallowed 
up  by  feudal  jurisdictions,  and  now  retain  only  a  certain  minor 
part  in  the  function,  once  exclusively  their  own,  of  caring  for 
the  poor ;  and  that  this  ancient  framework  of  counties,  towns, 

1  Local  Administration  (Imperial  Parliament  Series),  by  Wm.  Rathbone, 
Albert  Pell,  and  F.  C.  Montague,  p.  14. 


410 


THE  GOVERNMENT  OF  ENGLAND. 


and  parishes  has,  of  late  years,  been  extensively  overlaid  and 
in  large  part  obscured :  (a)  by  the  combination  (1834)  of  par- 
ishes into  '  Unions '  made  np  quite  irrespective  of  county 
boundaries  and  charged  not  only  with  the  immemorial  parish 
duty  of  maintaining  the  poor  but  often  with  sanitary  regula- 
tion also  and  school  superintendence,  and  generally  with  a  mis- 
cellany of  other  functions ;  (b)  by  the  creation  of  new  districts 
for  the  care  of  highways ;  and  (c)  by  new  varieties  of  town 
and  semi-town  government.  The  only  distinction  persistent 
enough  to  serve  as  a  basis  for  any  classification  of  the  areas  and 
functions  of  the  local  administration  thus  constructed  is  the 
distinction  between  E-ural  Administration  and  Urban  Adminis- 
tration, —  a  distinction  now  in  part  destroyed  by  the  Act  of 
1888 ;  and  of  these  two  divisions  of  administration  almost  the 
only  general  remark  which  it  seems  safe  to  venture  is,  that 
Rural  Administration  has  hitherto  rested  much  more  broadly 
than  does  Urban  on  old  historical  foundations. 

751.  The  County:  Its  Historical  Rootage.  —  For  the 
County,  with  its  influential  Justices  of  the  Peace  and  its  wide 
administrative  activities,  is  still  the  vital  centre  of  rural  govern- 
ment in  England;  and  the  Counties  are  in  a  sense  older  than 
the  kingdom  itself.  Many  of  them,  as  we  have  seen  (sec.  655)^ 
represent  in  their  areas,  though  of  course  no  longer  in  the 
nature  of  their  government,  separate  Saxon  kingdoms  of  the 
Heptarchy  times.  When  they  were  united  under  a  single  throne 
they  retained  (it  would  appear)  their  one-time  king  and  his 
descendants  in  the  elder  male  line  as  their  eoldormen.  They 
retained  also  their  old  general  council,  in  which  eoldorman 
and  bishop  presided,  though  there  was  added  presently  to  these 
presidents  of  the  older  order  of  things  another  official,  of  the 
new  order,  the  king's  officer,  the  Sheriff.  To  this  council  went 
up  as  was  of  old  the  wont,  the  priest,  the  reeve,  and  four  picked 
men  from  every  township,  together  with  the  customary  dele- 
gates from  the  ^hundreds.' 

Of  course  the  Counties  no  longer  retain  these  antique  forms 


THE  GOVEllNMENT  OF  ENGLAND. 


411 


of  government ;  scarcely  a  vestige  of  them  now  remains.  But 
the  old  forms  gave  way  to  the  forms  of  the  present  by  no  sud- 
den or  violent  changes,  and  some  of  the  organs  of  county  gov- 
ernment now  in  existence  could  adduce  plausible  proof  of  their 
descent  from  the  manly,  vigorous,  self-centred  Saxon  institu- 
tions of  the  ancient  time. 

752.  Early  Evolution  of  the  County  Organs.  —  In  Norman 
times  the  eoldorman's  office  languished  in  the  shadow  of  the 
Sheriff's  great  authority.  The  spiritual  and  temporal  courts 
were  separated,  too,  and  the  bishop  withdrew  in  large  measure 
from  official  participation  in  local  political  functions.  The 
County  Court  became  practically  the  Sheriff's  Court ;  its  suitors 
the  freeholders.  Its  functions  were,  however,  still  consider- 
able :  it  chose  the  officers  who  assessed  the  taxes,  it  was  the 
medium  of  the  Sheriff's  military  administration,  and  it  was 
still  the  principal  source  of  justice.  But  its  duties  were  not 
slow  to  decay.  As  a  Court  it  was  speedily  handed  over  to  the 
king's  itinerant  justices,  who  held  their  assizes  in  it  and  heard 
all  important  cases :  all  '  pleas  of  the  Crown.'  Its  financial 
functions  became  more  and  more  exclusively  the  personal  func- 
tions of  the  Sheriffs,  who  were  commonly  great  barons,  who 
managed  in  some  instances  to  make  their  office  hereditary, 
and  who  contrived  oftentimes  to  line  their  own  pockets  with 
the  proceeds  of  the  taxes  :  for  great  barons  who  were  sheriffs, 
were  sometimes  also  officials  of  the  Exchequer,  and  as  such 
audited  their  own  accounts.  The  local  courts  at  last  became 
merely  the  instruments  of  the  Sheriffs  and  of  the  royal  judges. 

753.  Decline  of  the  Sheriff's  Powers.  —  It  was  the  over- 
bearing power  of  the  Sheriffs,  thus  developed,  that  led  to  the 
great  changes  which  were  to  produce  the  county  government 
of  our  own  day.  The  interests  alike  of  the  Court  and  of  the 
people  became  enlisted  against  them.  The  first  step  towards 
displacing  them  was  taken  when  the  royal  justices  were  sent 
on  circuit.  Next,  in  1170,  under  Henry  II.'s  capable  direction, 
the  great  baronial  sheriffs  were  tried  for  malfeasance  in  office, 


412 


THE  GOVERNMENT  OF  ENGLAND. 


and,  though  influential  enough  to  escape  formal  conviction, 
were  not  influential  enough  to  retain  their  offices.  They  were 
dismissed,  and  replaced  by  Exchequer  officials  directly  depen- 
dent upon  the  Crown.  In  1194,  in  the  next  reign,  it  was 
arranged  that  certain  ^custodians  of  pleas  of  the  crown'  should 
be  elected  in  the  counties,  to  the  further  ousting  of  the 
Sheriffs  from  their  old-time  judicial  prerogatives.  Then  came 
Magna  Charta  (1215)  and  forbade  all  participation  by  Sheriffs 
in  the  administration  of  the  king's  justice.  Finally  the 
tenure  of  the  office  of  Sheriff,  which  was  now  little  more  than 
the  chief  place  in  the  militia  of  the  county  and  the  chief 
ministerial  office  in  connection  with  the  administration  of  jus- 
tice, was  limited  to  one  year.  The  pulling  down  of  the  old 
system  was  complete ;  fresh  construction  had  already  become 
necessary. 

754.  Justices  of  the  Peace.  —  The  reconstruction  was 
effected  through  the  appointment  of  '  Justices  of  the  Peace. ' 
The  expedient  of  '  custodians  of  pleas  of  the  crown '  {custodies 
placitorum  coronoe)  elected  in  county  court,  as  substitutes  for 
the  Sheriff  in  the  exercise  of  sundry  important  functions  of 
local  justice,  soon  proved  unsatisfactory.  They,  too,  like  the 
Sheriffs,  were  curtly  forbidden  by  Magna  Charta  to  hold  any 
pleas  of  the  crown ;  and  they  speedily  became  only  the  coiv- 
ners  we  know  ('crowners'  Shakspere's  grave-digger  in  Hamlet 
very  appropriately  calls  them),  whose  chief  function  it  is  to 
conduct  the  preliminary  investigation  concerning  every  case 
of  sudden  death  from  an  unknown  cause.  Better  success 
attended  the  experiment  of  Justices  of  the  Peace.  At  first 
*  Conservators  '  of  the  peace  merely,  these  officers  became,  by  a 
statute  passed  1360,  in  the  reign  of  Edward  III.,  justices  also, 
intrusted  with  a  certain  jurisdiction  over  criminal  cases,  to 
the  supplanting  of  the  Sheriff  in  the  last  of  his  judicial  func- 
tions, his  right,  namely,  to  pass  judgment  in  his  tourn  or  petty 
court  on  police  cases,  —  to  apply  the  discipline  of  enforced 
order  to  small  offences  against  the  public  peace. 


THE  GOVERNMENT  OF  ENGLAND. 


413 


755.  Henceforth,  as  it  turned  out,  the  process  of  providing 
ways  of  local  government  was  simple  enough,  as  legislators 
chose  to  conduct  it.  It  consisted  simply  in  charging  the  Jus- 
tices of  the  Peace  with  the  doing  of  everything  that  was 
necessary  to  be  done.  Slowly,  piece  by  piece,  their  duties  and 
prerogatives  were  added  to,  till  the  Justices  had  become  im- 
measurably the  most  important  functionaries  of  local  govern- 
ment, combining  in  their  comprehensive  official  characters 
almost  every  judicial  and  administrative  power  not  exercised 
from  London.  Not  till  the  passage  of  the  Local  Government 
Act  of  1888,  already  referred  to,  were  they  relegated  to  their 
older  and  most  characteristic  judicial  functions,  and  their 
administrative  and  financial  powers  transferred  to  another 
body,  the  newly  created  County  Council. 

756.  Functions  of  Justices  of  the  Peace  prior  to  Recent  Re- 
forms. —  The  Justice  of  the  Peace  has  been  very  happily  described  as 
having  been  under  the  old  system  "  the  state's  man  of  all  work."  His 
multifarious  duties  brought  him  into  the  service  (a)  of  the  Privy  Coun- 
cil, under  whose  Veterinary  Department  he  participated  in  the  adminis- 
tration of  the  Acts  relating  to  contagious  cattle  diseases ;  (b)  of  the 
Home  Office,  under  which  he  acted  in  governing  the  county  constabu- 
lary, in  conducting  the  administration  of  lunatic  asylums,  and  in  visiting 
prisons  ;  (c)  of  the  Board  of  Trade,  under  whose  general  supervision  he 
provided  and  tested  weights  and  measures,  constructed  and  repaired 
bridges,  and  oversaw  highway  authorities ;  and  (d)  of  the  Local  Gov- 
ernment Board,  under  whose  superintendence  he  appointed  parish  over- 
seers of  the  poor,  exercised,  on  appeal,  a  revisory  power  over  the  poor- 
rates,  and  took  a  certain  part  in  sanitary  regulation.  The  Justices, 
besides,  formerly  levied  the  county  tax,  or  '  rate,'  out  of  which  the 
expenses  of  county3usiness  were  defrayed,  issued  licenses  for  the  sale 
of  intoxicating  drinks  (as  they  still  do),  for  the  storage  of  gunpowder 
and  petroleum,  and  for  other  undertakings  required  by  law  to  be  licensed  ; 
they  divided  the  counties  into  highway,  polling,  and  coroners'  districts  ; 
they  issued  orders  for  the  removal  of  paupers  to  their  legal  place  of 
settlement ;  they  fulfilled  a  thousand  and  one  administrative  functions 
too  various  to  classify,  too  subordinate  to  need  enumeration,  now  that 
most  of  them  have  been  transferred  to  the  Councils.  The  trial  of  crimi- 
nal cases,  together  with  the  performance  of  the  various  functions  attend- 


414 


THE  GOVERNMENT  OF  ENGLAND. 


ant  upon  such  a  jurisdiction,  always  constituted,  of  course,  one  of  the 
weightiest  duties  of  their  office,  and  is  now  its  chief  and  almost  only 
duty. 

"Long  ago,"  laughs  Mr.  Maitland,  speaking  before  the  passage  of 
the  Act  of  1888,  "  long  ago  lawyers  abandoned  all  hope  of  describing 
the  duties  of  a  justice  in  any  methodic  fashion,  and  the  alphabet  has 
become  the  only  possible  connecting  thread.  A  Justice  must  have  some- 
thing to  do  with  '  Railroads,  Rape,  Rates,  Recognizances,  Records,  and 
Recreation  Grounds ' ;  with  '  Perjury,  Petroleum,  Piracy,  and  Play- 
houses ' ;  with  'Disorderly  Houses,  Dissenters,  Dogs,  and  Drainage.' 

757.  Character  and  Repute  of  the  Office  of  Justice.  —  The  office 
of  Justice  of  the  Peace  is  representative  in  the  same  sense  — not  an  un- 
important sense  —  in  which  the  unreformed  parliaments  of  the  early 
part  of  the  century  were  representative  of  the  county  populations.  The 
Justices  are  appointed  from  among  the  more  considerable  gentry  of  the 
counties,  and  represent  in  a  very  substantial  way  the  permanent  inter- 
ests of  the  predominantly  rural  communities  over  whose  justice  they 
preside.  An  interesting  proof  of  their  virtually  representative  char- 
acter appears  in  the  popularity  of  their  office  during  the  greater  part 
of  its  history.  Amidst  all  the  extensions  of  the  franchise,  all  the  re- 
making of  representative  institutions  which  this  century  has  witnessed 
in  England,  the  Justiceship  of  the  Peace  remained  practically  untouched, 
because  on  all  hands  greatly  respected,  until  the  evident  need  to  intro- 
duce system  into  local  government,  and  the  apparent  desirability  of 
systematizing  it  in  accordance  with  the  whole  policy  of  recent  reforms 
in  England  by  extending  the  principle  of  popular  representation  by 
election  to  county  government,  as  it  had  been  already  extended  to  ad- 
ministration in  the  lesser  areas,  led  to  the  substitution  of  County  Coun- 
cils for  the  Justices  as  the  county  authority  in  financial  and  administra- 
tive affairs. 

758.  The  Lord  Lieutenant.  —  In  the  reign  of  Mary  a  ^  Lord 
Lieutenant '  took  the  place  of  the  Sheriff  in  the  Connty  as  head 
of  the  militia,  becoming  the  chief  representative  of  the  crown 
in  the  Connty,  and  subsequently  the  keeper  of  the  county 
records  {Custos  Rotulorum).  The  Sheriff,  since  the  comple- 
tion of  this  change,  has  been  a  merely  administrative  officer, 
executing  the  judgments  of  the  courts,  and  presiding  over 


^  Justice  and  Police,  p.  84. 


THE  GOVERNMENT  OF  ENGLAND. 


415 


parliamentary  elections.  The  command  of  the  militia  re- 
mained with  the  Lords  Lieutenant  until  1871,  when  it  was 
vested  in  the  crown,  —  that  is,  assumed  by  the  central  admin- 
istration. 

Justices  of  the  Peace  are  still  appointed  by  the  Chancellor  upon  the 
nomination  of  the  Lord  Lieutenant  of  each  county  (sec.  743). 

759.  The  Reform  of  i888.  — The  reform  of  local  adminis- 
tration proposed  by  the  ministry  of  Lord  Salisbury,  in  the 
spring  of  1888,  although  not  venturing  so  far  as  it  would  be 
necessary  to  go  to  introduce  order  and  symmetry  into  a  patch- 
work system,  suggested  some  decided  steps  in  the  direction  of 
simplification  and  co-ordination.  The  confusions  of  the  exist- 
ing arrangements  were  many  and  most  serious.  England  is 
divided  into  counties,  boroughs,  urban  sanitary  districts,  rural 
sanitary  districts,  poor-law  parishes,  poor-law  unions,  highway 
parishes,  and  school  districts ;  and  these  areas  have  been 
superimposed  upon  one  another  with  an  astonishing  disregard 
of  consistent  system,  —  without,  that  is,  either  geographical 
or  administrative  co-ordination.  The  confusions  to  be  reme- 
died, therefore,  may  be  said  to  have  consisted  (a)  of  the  over- 
lapping of  the  various  areas  of  local  government,  the  smaller 
areas  not  being  in  all  cases  subdivisions  of  the  larger,  but 
defined  almost  wholly  without  regard  to  the  boundaries  of  any 
other  areas;  (6)  of  a  consequent  lack  of  co-ordination  and 
subordination  among  local  authorities,  fruitful  of  the  waste  of 
money  and  the  loss  of  efficiency  always  resulting  from  confu- 
sions and  duplications  of  organization ;  (c)  of  varieties  of  time, 
method,  and  franchise  in  the  choice  of  local  officials  ;  and  (c?) 
of  an  infinite  complexity  in  the  arrangements  regarding  local 
taxation,  the  sums  needed  for  the  various  purposes  of  local 
government  (for  the  poor,  for  example,  for  the  repair  of  high- 
ways, for  county  outlays,  etc.)  being  separately  assessed  and 
separately  collected,  at  great  expense  and  at  the  cost  of  great 
vexation  to  the  tax-payer. 


416 


THE  GOVERNMENT  OF  ENGLAND. 


Mr.  Goschen  is  stated  to  have  said  in  debate  upon  this  subject, 
"Every  one  knows  that  the  first  reform  needed  is  to  consolidate  all 
rates  and  to  have  one  demand  note  for  all  rates,  and  a  single  authority 
for  levying  the  rate  and  distributmg  the  proceeds  among  such  other 
authorities  as  have  power  to  call  for  contributions.  It  is  astonishing 
that  this  should  not  have  been  done  already.  Let  me  give  you  my 
personal  experience.  I  myself  received  in  one  year  eighty-seven  demand 
notes  on  an  aggregate  valuation  of  about  £1100.  One  parish  alone 
sent  me  eight  rate-papers  for  an  aggregate  amount  of  12s.  4d.  The 
intricacies  of  imperial  finance  are  simplicity  itself  compared  with  this 
local  financial  chaos." 

760.  The  ministry  at  first  proposed  to  remedy  this  confusion, 
at  least  in  part,  by  largely  centring  administration,  outside  the 
greater  towns,  in  two  areas,  the  County  and  the  District.  The 
s^^stem  of  poor-relief,  through  parishes  and  unions  (sees.  780, 
781,  787,  788),  was  to  be  left  untouched,  but  a  beginning  was 
to  be  made  in  unification  by  making  the  Counties  and  Districts 
the  controlling  organs  of  local  government,  and  provision  was 
to  be  made  for  extensive  readjustments  of  boundaries  which 
would  bring  the  smaller  rural  areas  into  proper  relation  and 
subordination  to  the  larger  by  making  them  in  all  cases  at  least 
subdivisions  of  counties.  Little  was  proposed  in  rectification 
of  the  financial  disorder  so  patent  and  so  wasteful  under  exist- 
ing arrangements ;  but  both  Count}'  and  District  were  to  have 
representative  councils  presumably  fitted  ultimately  to  assume 
the  whole  taxing  function.  The  franchise  by  which  these 
bodies  were  to  be  elected  was  to  be  assimilated  to  the  simplest 
and  broadest  used  in  local  and  parliamentary  elections.  It  was 
proposed,  moreover,  in  the  interest  of  uniformity,  that  the  con- 
stitution of  the  councils  should  be  substantially  the  same  as 
that  of  the  borough  and  urban  district  councils  already  in 
existence. 

761.  Only  a  portion  of  this  reform,  however,  made  its  way 
through  Parliament  and  became  an  Act :  the  '  Local  Govern- 
ment Bill,'  though  it  retained  its  name,  became  in  reality  only 
a  County  Government  Bill  before  it  reached  its  passage.  The 


THE  GOVERNMENT  OF  ENGLAND. 


417 


provisions  relating  to  Districts  were  left  out,  and  only  the 
county  was  reorganized.  The  larger  boroughs  were  given 
county  privileges,  the  smaller  brought  into  new  and  closer  re- 
lations with  the  reconstructed  county  governments.  London, 
too,  was  given  a  county  organization.  The  integration  of  the 
smaller  areas  of  rural  administration  with  the  new  county 
system  was  left  for  another  time. 

This  completion  of  the  reform  was  promised  for  an  early  date  by  the 
ministry,  however,  and  may  perhaps  be  very  soon  accomplished.^ 

762.  Administrative  Counties  and  County  Boroughs.  — 

The  Act  of  1888,  as  it  stands,  co-ordinates  Counties  and  what 
are  henceforth  to  be  called  "County  Boroughs."  Every  bor- 
ough of  not  less  than  fifty  thousand  inhabitants  at  the  time 
the  Act  was  passed,  or  which  was,  before  the  passage  of  the 
Act,  treated  as  a  county  (in  all,  sixty-one  boroughs)  is  consti- 
tuted a  "  county  borough,"  and  is  put  alongside  the  county  in 
rank  and  privileges.  This  does  not  mean,  as  it  would  seem  to 
mean,  that  these  boroughs  have  been  given  a  county  organiza- 
tion. Paradoxically  enough,  it  means  just  the  opposite,  that 
the  counties  have  been  given  an  organization  closely  resembling 
that  hitherto  possessed  by  the  boroughs  only.  The  nomencla- 
ture of  the  Act  would  be  more  correct,  though  possibly  less 
convenient,  had  it  called  the  counties  '  borough  counties '  in- 
stead of  calling  some  boroughs  '  county  boroughs.'  The  meas- 
ure has  been  very  appropriately  described  as  an  Act  to  apply 
the  Municipal  Corporations  Act  of  1882,  whose  main  provisions 
date  back  as  far  as  1835  (sec.  794),  to  county  government,  with 
certain  relatively  unimportant  modifications. 

763.  The  counties  designated  by  the  Act  are  dubbed  "  admin- 
istrative counties,"  because  they  are  not  in  all  cases  the  histor- 
ical counties  of  the  map.  In  several  instances  counties  are 
separated  into  parts  for  the  purposes  of  the  reorganization. 
Thus  the  East  Eiding  of  Yorkshire  constitutes  one  '  admij>is- 

1  Written  March,  1889. 


418 


THE  GOVERNMENT  OF  ENGLAND. 


trative  county,'  the  North.  Riding  another,  and  the  West  Eid- 
ing  a  third ;  Suffolk  and  Sussex  also  have  each  an  East  and 
West  division;  Lincoln  falls  apart  into  three  administrative 
counties,  etc. 

All  boroughs  of  less  than  50,000  inhabitants  not  treated  as  counties 
are  more  or  less  incorporated  with  the  counties  in  which  they  lie. 

If  any  urban  sanitary  district  lie  within  more  than  one  county,  it  is 
to  be  deemed  to  belong  to  the  county  in  wliich  the  greater  part  of  its 
population  live  according  to  the  census  of  1881. 

764.  The  County  Councils:  their  Constitution.  —  In  pur- 
suance of  the  purpose  of  assimilating  county  to  borough  organ- 
ization, the  counties  are  given  representative  governing  assem- 
blies composed  of  councillors  and  aldermen,  presided  over  by 
a  chairman  whose  position  and  functions  reproduce  those  of  the 
borough  mayors,  and  possessing  as  their  outfit  of  powers  all 
the  miscellany  of  administrative  functions  hitherto  belonging 
to  the  Justices  of  the  Peace.  There  is  not,  it  should  be  ob- 
served, a  Council  and  a  Board  of  Aldermen,  as  in  American 
cities,  but  a  single  body  known  as  the  Council  and  composed 
of  two  classes  of  members,  the  one  class  known  as  Aldermen, 
the  other  as  Councillors.  These  two  classes  differ  from  each 
other,  not  in  power  or  in  function,  but  only  in  number,  term, 
and  mode  of  election.  The  Councillors  are  directly  elected  by 
the  qualified  voters  of  the  County  and  hold  office  for  a  term  of 
three  years ;  the  Aldermen  are  one-third  as  many  as  the  Coun- 
cillors in  number,  are  elected  by  the  Councillors,  either  from 
their  own  number  or  from  the  qualified  voters  outside,  and 
hold  office  for  six  years,  one-half  of  their  number,  however, 
retiring  every  three  years,  in  rotation.  This  Council  of  Alder- 
men and  Councillors  elects  its  own  chairman,  to  serve  for  one 
year,  and  pa^^s  him  such  compensation  as  it  deems  sufficient. 
During  his  year  of  service  the  chairman  exercises  the  usual 
presidential,  but  no  independent  executive,  powers,  and  is  au- 
thorized to  act  as  a  Justice  of  the  Peace,  along  with  the  rest 
of  the  'Commission'  of  the  County. 


THE  GOVERNMENT  OF  ENGLAND. 


419 


765.  Any  one  may  be  elected  a  councillor  who  is  a  qualified  voter  in 
the  county,  or  who  is  entitled  to  vote  in  parliamentary  elections  by 
virtue  of  ownership  of  property  in  the  county ;  and  in  the  counties, 
tliough  not  in  the  boroughs,  from  whose  constitution  this  of  the  coun- 
ties is  copied,  peers  owning  property  in  the  county  and  "  clerks  in  holy 
orders  and  other  ministers  of  religion  "  may  be  chosen  to  the  council. 

766.  The  number  of  councillors,  and  consequently  also  the  num- 
ber of  aldermen,  in  each  County  Council  (for  the  latter  number  is 
always  one-third  of  the  former)  was  fixed  in  the  first  instance  by  order 
of  the  Local  Government  Board,  and  is  in  some  cases  very  large.  Thus 
Lancashire  has  a  council  (aldermen,  of  course,  included)  of  140  mem- 
bers, the  West  Riding  of  Yorkshire  a  council  of  120,  Devon  a  council 
of  104.  Rutland,  whose  council  is  the  smallest,  has  28.  The  average 
is  probably  about  75. 

767.  For  the  election  of  councillors  the  county,  including  the  bor- 
oughs which  are  not  '  county  boroughs,'  is  divided  into  electoral  districts, 
corresponding  in  number  to  the  number  of  councillors,  one  councillor 
being  chosen  from  each  district.  The  number  of  these  districts  having 
been  determined  by  the  order  of  the  Local  Government  Board,  their 
area  and  disposition  were  fixed  in  the  first  instance  by  Quarter  Sessions, 
or,  within  the  non-county  boroughs  needing  division,  by  the  borough 
Council,  due  regard  being  had  to  relative  population  and  to  a  fair  divis- 
ion of  representation  between  rural  and  urban  populations. 

768.  The  number  of  councillors  and  the  boundaries  of  electoral  dis- 
tricts may  be  changed  by  order  of  the  Local  Government  Board  upon 
the  recommendation  of  the  council  of  a  borough  or  county. 

769.  The  County  Franchise. — The  councillors  are  elected, 
to  speak  in  the  most  general  terms,  by  the  resident  ratepayers 
of  the  county.  Every  person,  that  is  to  say,  not  an  alien  or 
otherwise  specially  disqualified,  who  is  actually  resident  within 
the  county  or  within  seven  miles  of  it,  paying  rates  in  the 
county  and  occupying,  within  the  county,  either  jointly  or 
alone,  any  house,  warehouse,  counting-house,  shop,  or  other 
building  for  which  he  pays  rates  is  entitled  to  be  enrolled  (if 
his  residence  has  been  of  twelve  months'  standing)  and  to  vote 
as  a  county  elector. 

A  person  who  occupies  land  in  the  county  of  the  annual  value  of 
£10  and  who  resides  in  the  county,  or  within  seven  miles  of  it,  may  vote 


420 


THE  GOVERNMENT  OF  ENGLAND. 


in  the  elections  for  county  councillors  though  his  residence  has  been 
of  only  six  months'  standing. 

Single  women  who  have  the  necessary  qualifications  as  ratepayers 
and  residents  are  entitled  to  vote  as  county  electors. 

770.  Powers  of  the  County  Councils.  —  The  Council  of 
each  County  is  a  body  corporate,  under  the  title  of  the  "  County 

Council  of   "  (the  name  of  the  administrative  county), 

and  as  such  may  have  a  common  seal,  hold  property,  make  by- 
laws, etc.  Its  by-laws,  however,  unless  they  concern  nuisances, 
are  subject  to  approval  by  the  Secretary  of  State,^  and  may  be 
annulled  by  an  order  in  Council. 

(1)  The  Council  holds  and  administers  all  county  property, 
and  may  purchase  or  lease  lands  or  buildings  for  county  uses ; 

(2)  With  it  rests  the  duty  of  maintaining,  managing,  and, 
when  necessary,  enlarging,  the  pauper  lunatic  asylums  of  the 
county,  and  of  establishing  and  maintaining,  or  contributing 
to.  reformatory  and  industrial  schools  ; 

(3)  It  is  charged  with  maintaining  county  bridges,  and  all 
main  roads  in  every  part  not  specially  reserved  by  urban  author- 
ities for  their  own  management  because  lying  within  their  own 
limits ;  and  it  may  declare  any  road  a  main  road  which  seems 
to  serve  as  such,  and  which  has  been  put  in  thorough  repair, 
before  being  accepted  by  the  county,  by  the  local  highway 
authorities  (sec.  786)  ; 

(4)  It  administers  the  statutes  affecting  the  contagious  dis- 
eases of  animals,  destructive  insects,  fish  preservation,  weights 
and  measures,  etc. ; 

(5)  It  appoints,  pays,  and  may  remove  the  county  Treas- 
urer, the  county  coroner,  the  public  surveyor,  the  county 
analyst,  and  all  other  officers  paid  out  of  the  county  rates  — 
except  the  clerk  of  the  Peace  and  the  clerks  of  the  Justices  — 
including  the  medical  health  officers,  though  these  latter  func- 
tionaries report,  not  to  the  Council  (the  Council  receives  only 


1  Presumably  the  Home  Secretary. 


THE  GOVEllNMENT  OF  ENGLAND. 


421 


a  copy  of  their  report),  but  to  the  Local  Government  Board, 
and  the  only  power  of  the  Council  in  the  premises  is  to  address 
to  the  Board,  independently  and  of  their  own  motion,  represen- 
tations as  to  the  enforcement  of  the  Public  Health  Acts  where 
such  representations  seem  necessary ; 

(6)  It  determines  the  fees  of  the  coroner  and  controls  the 
division  of  the  county  into  coroners'  districts  ; 

(7)  It  divides  the  county  into  polling  districts  also  for  par- 
liamentary elections,  appoints  voting  places,  and  supervises 
the  registration  of  voters  ; 

(8)  It  sees  to  the  registering  of  places  of  worship,  of  the 
rules  of  scientific  societies,  of  charitable  gifts,  etc. 

It  is  obviously  impossible  to  classify  or  make  any  generalized  state- 
ment of  this  miscellany  of  powers  :  they  must  be  enumerated  or  not 
stated  at  all.  They  are  for  the  most  part,  though  not  altogether,  the 
administrative  powers  formerly  intrusted  to  the  Justices  of  the  Peace, 

771.  The  licensing  function,  as  being  semi-judicial,  is  left 
in  most  cases  with  the  Justices  of  the  Peace  ;  but  the  County 
Council  is  assigned  the  granting  of  licenses  to  music  and  danc- 
ing halls,  to  houses  which  are  to  be  devoted  to  the  public  per- 
formance of  stage  plays,  and  for  the  keeping  of  explosives. 

Oddly  enough,  the  County  Council  is,  by  another  section  of  the  Act 
of  1888,  authorized  to  delegate  its  powers  of  licensing  in  the  case  of  play- 
houses and  in  the  case  of  explosives  back  to  the  Justices  again,  acting 
in  petty  sessions.  The  same  section  also  permits  a  similar  delegation 
to  the  Justices  of  the  powers  exercised  by  the  Council  under  the  Act 
touching  contagious  cattle  diseases. 

772.  The  financial  powers  of  the  Council  are  extensive 
and  important.  The  Council  takes  the  place  of  the  Justices  in 
determining,  assessing,  and  levying  the  county,  police  and  hun- 
dred rates,  in  disbursing  the  funds  so  raised,  and  in  preparing 
or  revising  the  basis  or  standard  for  the  county  rates  ;  though 
in  this  last  matter  it  acts  subject  to  appeal  to  Quarter  Sessions. 
It  may  borrow  money,  "  on  the  security  of  the  county  fund," 
for  the  purpose  of  consolidating  the  county  debt,  purchasing 


422 


THE  GOVERNMENT  OF  ENGLAND. 


property  for  the  county,  or  undertaking  permanent  public 
works,  provided  it  first  obtain  the  consent  of  the  Local  Gov- 
ernment Board  to  the  raising  of  the  loan.  The  Board  gives  or 
withholds  its  consent  only  after  a  local  inquiry,  and,  in  case 
it  assents,  fixes  the  period  within  which  the  loan  must  be 
repaid,  being  itself  limited  in  this  last  particular  by  a  provis- 
ion of  law  that  the  period  must  never  exceed  thirty  years. 

If  the  debt  of  the  county  already  exceed  ten  per  cent,  of  the  annual 
ratable  value  of  the  ratable  property  of  the  county,  or  if  the  proposed 
loan  would  raise  it  above  that  amount,  a  loan  can  be  sanctioned  only  by 
a  provisional  order  of  the  Board,  —  an  order,  that  is,  which  becomes  valid 
only  upon  receiving  the  formal  sanction  of  parliament  also,  given  by 
public  Act. 

A  county  may  issue  stock,  under  certain  limitations,  if  the  consent 
of  the  Local  Government  Board  be  obtained. 

773.  Additional  Powers.  — The  Act  of  1888  provides  that  any 
other  powers  which  have  been  conferred  upon  the  authorities  of 
particular  localities  by  special  Act,  and  which  are  similar  in  character 
to  those  already  vested  in  the  County  Councils,  may  be  transferred  to 
the  proper  County  Councils  by  provisional  order  of  the  Local  Govern- 
ment Board ;  and  also  that  a  similar  provisional  order  of  that  Board 
may  confer  upon  a  County  Council  any  powers,  arising  within  the  County, 
which  are  now  exercised  by  the  Privy  Council,  a  Secretary  of  State, 
the  Board  of  Trade,  the  Local  Government  Board  itself,  or  any  other 
government  department,  provided  they  be  powers  conferred  by  statute 
and  the  consent  of  the  department  concerned  be  first  secured. 

774.  The  County  Budget.  —  At  the  beginning  of  every 
local  financial  year  (April  1st)  an  estimate  of  the  receipts  and 
expenditures  of  the  year  is  submitted  to  the  Council,  and  upon 
the  basis  of  this,  the  Council  makes  estimate  of  the  sums  to 
be  needed,  and  fixes  the  rates  accordingly.  The  Council's  esti- 
mate is  made  for  two  six-month  periods,  and  is  subject  to  revis- 
ion for  the  second  six-month  period,  provided  the  experience 
of  the  first  prove  it  necessary  either  to  increase  or  decrease  the 
amounts  to  be  raised. 

775.  Keturns  of  the  actual  receipts  and  expenditures  of  each 
financial  year  are  also  made  to  the  Local  Government  Board, 


THE  GOVERNMENT  OF  ENGLAND. 


42S 


in  such  form  and  with  such  particuhirs  as  the  Board  directs  ; 
and  full  abstracts  of  these  returns  are  annually  laid  before  both 
Houses  of  Parliament.  The  county  accounts  are,  moreover, 
periodically  audited  by  district  auditors  appointed  by  the 
Local  Government  Board. 

The  accounts  of  the  county  Treasurer  are  audited,  too,  by  the  Council. 

776.  Local  rates  are  assessed  exclusively  upon  real  estate, 
and,  until  the  passage  of  the  Local  Government  Act  of  1888,  it 
was  the  habit  of  Parliament  to  make  annual  '  grants  in  aid  of 
the  rates  '  from  the  national  purse,  with  the  idea  of  paying  out 
of  moneys  raised  largely  upon  personal  property  some  part  of 
the  expense  of  local  administration.  The  Act  of  1888  sub- 
stitutes another  arrangement.  It  provides  that  all  moneys 
collected  from  certain  licenses  (a  long  list  of  them,  from  liquor 
licenses  to  licenses  for  male  servants  and  guns),  together  with 
four-fifths  of  one-half  of  the  proceeds  of  the  probate  duty, 
shall  be  distributed  among  the  counties  from  the  imperial 
treasury,  under  the  direction  of  the  Local  Government  Board, 
for  the  purpose  of  defraying  certain  specified  county  expenses, 
notably  for  the  education  of  paupers  and  the  support  of  pauper 
lunatics. 

777.  The  police  powers,  long  exercised  by  the  Justices  of 
the  Peace,  are  now  exercised  by  a  joint  committee  of  Quarter 
Sessions  and  the  County  Council.  This  committee  is  made  up, 
in  equal  parts,  of  Justices  and  members  of  the  Council ;  elects 
its  own  chairman,  if  necessary  (because  of  a  tie  vote) ,  by  lot ; 
and  acts  when  appointed,  not  as  exercising  delegated  authority, 
but  as  an  independent  body.  The  term  of  the  committeemen 
is,  however,  determined  by  the  bodies  which  choose  them. 

778.  The  County  Council  is  empowered  to  act  in  the  exercise  of  all 
but  its  financial  powers  through  committees,  and  to  join  in  action  with 
other  local  authorities  in  any  proper  case  through  a  standing  joint 
committee  such  as  that  which  has  control  of  the  constabular3^ 

779.  Boundaries.  — The  Act  of  1888  provides  for  the  much  needed 
co-ordination  of  areas  by  empowering  the  Local  Government  Board, 


424 


THE  GOVERNMENT  OF  ENGLAND. 


acting  upon  the  recommendation  of  a  county  or  a  borough  council, 
and  after  a  local  inquiry  publicly  held  before  a  Local  Government 
Board  inspector,  to  make  an  order  for  the  alteration  of  county  or 
borough  boundaries,  for  the  union  of  two  boroughs,  or  for  the  alter- 
ation of  any  area  of  local  government  only  partly  included  in  a  county 
or  borough.  Such  an  order  is  provisional,  however,  and  must  await 
the  assent  of  Parliament. 

A  County  Council,  moreover,  may  itself  provide  for  the  alteration  or 
definition  of  the  boundaries  of  any  parish  or  any  county  district  which 
is  not  a  borough,  for  the  union  of  such  parish  or  district  with  other 
districts  or  parishes,  or  for  the  conversion  of  rural  into  urban,  or  urban 
into  rural,  districts.  In  case  such  an  order  is  made  by  a  Council,  how- 
ever, three  months  is  to  be  allowed  for  protests  on  the  part  of  county 
electors.  These  protests  are  to  be  addressed  to  the  Local  Government 
Board.  In  case  a  protest  is  entered  under  the  proper  conditions  as  to 
number  and  electoral  qualification  of  the  protestants,  a  local  inquiry 
must  be  held,  and  the  order  may  be  disallowed.  If  there  be  no  contest 
made  in  the  matter,  the  order  must  be  confirmed. 

780.  The  Parish.  —  Parishes  there  have  been  in  England 
ever  since  the  Christian  church  was  established  there ;  but  the 
Parish  which  now  figures  most  prominently  in  English  local 
government  inherits  only  its  name  intact  from  those  first  years 
of  the  national  history.  The  church,  in  its  first  w^ork  of  or- 
ganization, used  the  smallest  units  of  the  state  for  the  smallest 
divisions  of  its  own  system  ;  it  made  the  towaiship  its  parish ; 
and  presently  the  priest  w^as  always  seen  going  up  wath  the 
reeve  and  the  four  men  of  the  township  to  the  hundred  and 
the  county  courts.  Only  wdiere  the  population  was  most 
numerous  did  it  prove  necessary  to  make  the  parish  smaller 
than  the  township ;  only  when  it  was  least  numerous  did  it 
seem  expedient  to  make  the  parish  larger  than  the  township. 
Generally  the  two  were  coincident.  During  much  the  greater 
part  of  English  history,  too,  citizenship  and  church  member- 
ship were  inseparable  in  fact,  as  the}'  still  are  in  legal  theory. 
The  vestry,  therefore,  w^hich  was  the  assembly  of  church-mem- 
bers which  elected  the  church-wardens  and  regulated  the  tem- 
poralities of  the  local  church,  was  exactly  the  same  body  of 


THE  GOVERNMENT  OF  ENGLAND. 


425 


persons  that,  when  not  acting  upon  church  affairs,  constituted 
the  township  meeting.  It  was  the  village  moot  '  in  its  eccle- 
siastical aspect.'  And  when  the  township  privileges  were,  by 
feudalization,  swallowed  up  in  the  manorial  rights  of  the  baron- 
age, the  vestry  was  all  that  remained  of  the  old  organization  of 
self-government ;  the  court,  or  civil  assembly,  of  the  township 
was  superseded  by  the  baron's  manorial  court.  But  the  church 
was  not  absorbed;  the  vestry  remained,  and  whatever  scraps 
of  civil  function  escaped  the  too  inclusive  sweep  of  the  grants 
of  jurisdiction  to  the  barons  the  people  were  fain  to  enjoy  as 
vestrymen. 

781.  The  Poor-law  Parish.  —  It  was  in  this  way  that  it  fell 
out  that  the  township,  when  acting  in  matters  strictly  non- 
ecclesiastical  came  to  call  itself  the  parish,  and  that  it  became 
necessary  to  distinguish  the  '  civil  parish '  from  the  '  ecclesias- 
tical parish.'  The  vestry  came  at  last  to  elect,  not  church- 
wardens only,  but  way-wardens  also,  and  assessors  ;  and  in  the 
sixteenth  century  (1535,  reign  of  Henry  VIIL)  the  church- 
wardens were  charged  with  the  relief  of  the  poor.  We  are 
thus  brought  within  easy  sight  of  the  only  parish  of  which  it 
is  necessary  to  speak  at  any  length  in  describing  the  present 
arrangements  of  local  government  in  England,  the  Poor-law 
Parish,  namely.  The  legislation  of  the  present  century,  which 
has  been  busy  about  so  many  things,  has  not  failed  to  readjust 
the  parish:  in  most  cases,  as  altered  by  statute  to  suit  the 
conveniences  of  poor-law  administration,  "the  modern  civil 
parish  coincides  neither  with  the  ancient  civil  parish,  nor  with 
the  ecclesiastical  parish,"  but  has  been  given  a  new  area  pecu- 
liar to  itself.  Still,  the  old  parochial  machinery  survives,  and 
the  old  parochial  duty  of  contributing  to  the  support  of  the 
poor.  The  Poor-law  Parish  has  still  its  vestry  which  elects 
parish  officers ;  and  still  also  the  church-wardens  are  ex  officio 
overseers  of  the  poor.  The  important  feature  of  the  new 
administration  is,  that  as  actual  administrators  the  parochial 
officers  have  been  subordinated  to  a  wider  authority.  The 


426 


THE  GOVERNMENT  OF  ENGLAND. 


parish  is  the  unit  of  taxation  for  the  support  of  the  poor,  but 
the  work  of  assessing  and  collecting  the  taxes  is  done  by  over- 
seers appointed  by  the  county  Justices,  not  by  the  church-war- 
dens, who  are  now  associate,  ex  officio,  overseers  merely ;  and 
the  active  administration  of  poor-relief  has  been  intrusted  to 
the  authorities  of  the  ^  Union.'  The  history  of  the  parish, 
as  an  area  of  civil  government,  is  important,  therefore,  not 
because  of  what  the  parish  is,  but  because  of  what  the  parish 
has  been.  The  administrative  history  of  the  parish  rounds 
out  the  administrative  history  of  the  county,  by  showing  how 
the  parish-township,  the  original  constituent  unit  of  the  county, 
has  been  overlaid  by  later  constructions. 

782.  Poor-law  parishes  know  no  distinction  between  town  and  country. 
They  cover  a  certain  definite  area,  whether  that  area  lies  within  a  town  or 
without,  or  partly  within  and  partly  without.  They  thus  often  combine 
urban  with  rural  populations  for  the  purposes  of  poor-law  taxation. 

783.  The  ordinary  overseers  are  not  paid  officers ;  but  one  or  more 
assistant  overseers,  who  are  paid,  may  be  elected  by  the  vestry  of  a  poor- 
law  parish  (to  be  appointed  under  the  seal  of  the  Justices)  ;  and  when 
such  officers  are  appointed  they  naturally  do  most  of  the  work. 

784.  The  duties  now  remaining  with  the  vestry  are,  chiefly,  the 
management  of  parochial  property  and  the  administration  of  certain 
locally  optional  acts,  when  adopted,  concerning  the  establishment  and 
maintenance  of  free  libraries  and  the  special  lighting  and  patrolling  of 
the  parochial  territory. 

Vestries  are  either  *  common  '  or  •  select.'  A  *  common '  vestry 
consists  of  all  the  ratepayers  of  the  parish,  —  is  a  general  parish  meet- 
ing. A  *  select '  vestry  consists  of  elected  representatives  of  the  rate- 
payers. 

785.  The  parish  serves  as  an  electoral  and  jury  district  as  well  as  a 
tax  district,  and  the  overseers  of  the  poor,  besides  assessing  and  raising 
the  poor-rates,  make  out  the  jury  lists  and  the  lists  of  parliamentary, 
county,  and  municipal  voters. 

786.  The  Highway  Parish.  —  Various  rural  *  parishes,'  some  of 
which  coincide  with  the  poor-law  parish,  but  others  of  which  are  quite 
distinct,  are  charged  with  an  administrative  part  in  the  maintenance  of 
the  highways.  Often,  however,  rural  parishes  are  grouped  for  this  pur- 
pose into  larger  '  Highway  Districts '  created  by  order  of  the  Justices  in 


THE  GOVERNMENT  OF  ENGLAND. 


427 


Quarter  Sessions,  and  whose  way-wardens  are  elected  by  the  several 
component  parishes.  Urban  districts,  again,  have,  in  their  turn,  separate 
highway  authorities  of  their  own. 

787.  The  Union.  —  The  Union  is  primarily  an  aggregation 
of  parishes  effected  with  a  view  to  a  wider  and  better  adminis- 
tration of  the  poor-laws  ;  though,  like  most  of  the  districts  of 
local  government  in  England,  it  has  been  charged  since  its 
formation  with  many  functions  in  no  way  connected  with  the 
purposes  for  which  it  was  originally  created.  In  1834  a  cen- 
tral Commission  was  constituted  by  Act  of  Parliament  to  exer- 
cise a  general  oversight  over  the  administration  of  the  poor- 
laws,  the  Act  being  known  as  the  Poor  Law  Amendment  Act. 
This  Commission  was  authorized  to  group  the  parishes  of  the 
kingdom  into  '  Unions  '  for  the  better  organization  and  control 
of  poor-relief.  It  was  succeeded  in  time  by  a  more  complete 
Poor  Law  Board ;  and  that  Board,  in  its  turn,  by  the  present 
Local  Government  Board.  This  latter  now  completely  controls 
the  Unions  :  it  can  change,  abolish,  or  subdivide  them ;  it  con- 
trols the  appointment  and  dismissal  of  all  Union  officers ;  and 
it  audits,  through  special  district  auditors.  Union  accounts. 

788.  The  administrative  authority  of  the  Union  is  a  Board 
of  Guardians,  consisting  of  the  Justices  residing  within  the 
Union,  who  are  members  ex  officio,  and  of  members  elected  by 
the  several  parishes  composing  the  Union,  —  every  parish 
which  contains  as  many  as  three  hundred  inhabitants  being 
entitled  to  choose  at  least  one  Guardian.  It  is  the  elected 
members,  of  course,  and  not  the  Justices,  who  really  act  in  the 
Board. 

789.  The  Rural  Sanitary  District.  —  Later  legislation  has 
charged  the  Board  of  Guardians  with  the  care  of  the  sanitation 
of  all  parts  of  the  Union  which  lie  outside  urban  limits,  thus 
erecting  the  rural  portions  of  each  Union  into  a  special  Bural 
Sanitary  District. 

790.  Besides  their  duties  of  poor-relief  and  sanitary  regulation,  the 
Guardians  of  each  Union  are  charged  with  attending  to  the  registration 


428 


THE  GOVERNMENT  OF  ENGLAND. 


of  births  and  deaths,  to  the  lighting  of  such  portions  of  their  districts 
as  need  to  be  lighted,  though  lying  outside  technically  urban  limits,  and 
with  the  administration  of  the  laws  concerning  vaccination. 

791.  The  Local  Government  Board  fixes  for  the  Guardians  a  property 
qualification,  which  is  to  be  in  no  case  above  £  40  rating.  The  Guar- 
dians are  elected  by  the  "  owners  and  ratepayers  "  of  each  parish,  each 
voter  being  entitled  to  one  vote  for  every  £  50  of  rated  property  up  to 
a  total  number  of  six  votes.  If  any  one  be  entitled  to  vote  both  as 
owner  and  as  ratepayer,  he  may  cast  as  many  as  twelve  votes,  in  case  he 
is  rated  to  a  sufficient  amount. 

792.  Unions  are  of  all  sizes  and  plans,  though  it  is  within  the  power 
of  the  Local  Government  Board  to  readjust  their  boundaries  and  bring 
them  into  proper  geographical  relations  with  other  larger  areas.  The 
only  rule  heretofore  observed  as  to  their  make-up  is,  that  they  are 
always  to  be  aggregations  of  parishes  already  existing.  They  have  not 
been  conformed  to  county  boundaries  at  all.  It  is  stated  that  in  1882, 
out  of  a  total  of  617  Unions,  176  "included  parts  of  two  or  more  coun- 
ties, and  of  these  29  were  each  in  three  counties,  and  four  were  each  in 
four  counties."!  Unions  vary  so  greatly  in  size  that  it  is  estimated 
that  some  contain  as  many  as  one  hundred  and  twenty  times  the  popu- 
lation of  others.  The  average  population  of  the  Unions  is  said  to  be 
about  45,000. 

793.  Municipalities.  — A  comprehensive  view  of  municipal 

government  in  England  must  embrace  both  those  governmental 
agencies  which  English  law  describes  as  municipal  corporations 
and  those  whicli  it  calls  Urban  Sanitary  Districts.  Urban  San- 
itary Districts  are  simply  less  developed  municipal  corpora- 
tions :  sanitary  regulation  is  their  chief  but  by  no  means  their 
only  function.  In  any  logical  classification,  they  must  be 
regarded  as  a  species  of  municipal  government. 

794.  I.  Municipal  Corporations.  —  The  constitution  of 
those  English  towns  which  have  fully  developed  municipal  or- 
ganizations rests  upon  the  Municipal  Corporations  Act  of  1835 
and  its  various  amendments  as  codified  in  an  Act  of  1882  of 
the  same  name.  This  latter  Act  is,  in  its  turn,  in  some  degree 
altered  by  the  Local  Government  Act  of  1888.    If  the  inhabi- 


1  Local  Administration,  p.  40. 


THE  GOVERNMENT  OF  ENGLAND. 


429 


tants  of  any  place  wish  to  have  it  incorporated  as  a  munici- 
pality, they  must  address  a  petition  to  that  effect  to  the  Privy 
Council.  Notice  of  such  a  petition  must  be  sent  to  the  Coun- 
cil of  the  county  in  which  the  place  is  situate  and  also  to  the 
Local  Government  Board.  The  Privy  Council  will  appoint  a 
committee  to  consider  the  petition,  whose  consideration  of  it 
will  consist  in  visiting  the  place  from  which  the  petition  comes 
and  there  seeing  and  hearing  for  themselves  the  arguments 
pro  and  con.  All  representations  made  upon  the  subject  by 
either  the  County  Council  or  the  Local  Government  Board 
must  also  be  considered. 

Generally  there  is  considerable  local  opposition  either  to  such  a 
petition  being  offered  or  to  its  being  granted  when  offered;  for  the 
government  of  the  place  is  usually  already  in  the  hands  of  numerous 
local  authorities  of  one  kind  or  another  who  do  not  relish  the  idea  of. 
being  extinguished,  and  there  are,  of  course,  persons  who  do  not  care 
to  take  part  in  bearing  the  additional  expenses  of  a  more  elaborate 
organization. 

If  the  petition  be  granted,  the  Privy  Council  issue  a  charter 
of  incorporation  to  the  place,  arranging  for  the  extinction  of 
competing  local  authorities,  setting  the  limits  of  the  new 
municipality,  determining  the  number  of  its  councillors,  and 
often  even  marking  out  its  division  into  wards. 

795.  Once  incorporated,  the  town  takes  its  constitution 
ready-made  from  the  Act  under  whose  sanction  it  petitioned 
for  incorporation.  That  Act  provides  that  the  official  name  of 
the  borough  shall  be  "The  Mayor,  Aldermen  and  Burgesses 
of  " ;  that  it  shall  be  governed,  that  is,  by  a  mayor,  alder- 
men, and  councillors.  The  councillors  hold  office  for  a  term  of 
three  years,  one-third  of  their  number  going  out,  in  rotation, 
every  year.  There  are  always  one-third  as  many  aldermen  as 
councillors.  The  aldermen  are  elected  by  the  councillors  for  a 
term  of  six  years,  one-half  of  their  number  retiring  from  office 
every  three  years,  by  rotation.  The  mayor  is  elected  by  the 
Council  —  by  the  aldermen  and  councillors,  that  is, — holds 


430 


THE  GOVERNMENT  OF  ENGLAND. 


office  for  one  year  only,  and,  unlike  the  councillors  and  alder- 
men, receives  a  salary.  The  councillors  are  elected  by  the  res- 
ident ratepayers  of  the  borough.  Every  person  who  occupies 
a  house,  warehouse,  shop,  or  other  building  in  the  borough,  for 
which  he  pays  rates,  and  who  resides  within  seven  miles  of 
the  borough,  is  entitled  to  be  enrolled  as  a  burgess.'^  ^ 

796.  Judicial  Status  of  Boroughs.  —  Whatever  powers  are 
not  specifically  granted  to  a  municipality  remain  with  previ- 
ously constituted  authorities.  Local  organization  has  proceeded 
in  England  by  subtraction  —  by  the  subtracting  of  powers 
from  old  to  be  bestowed  upon  new  authorities.  New  areas 
have  been  superimposed  upon  and  across  old  areas  and  new 
authorities  have  had  set  apart  to  them  special  portions  of  gov- 
ernmental power  ^  the  old  authorities  have  kept  the  rest. 
Thus  the  Union  has  been  not  at  all  affected,  as  an  area  of  poor- 
relief,  by  the  superimposition  of  boroughs  or  of  Urban  Sani- 
tary Districts  upon  it.  In  the  same  way,  because  the  Mu- 
nicipal Corporations  Act  does  not  provide  for  the  exercise  of 
judicial  powers  by  the  authorities  of  a  borough  by  virtue  of  their 
separate  incorporation,  those  powers  remain  with  the  Justices : 
unless  additional  special  provision  is  made  to  the  contrary,  a 
municipality  remains,  for  the  purpose  of  justice,  a  part  of  the 
county.  By  petition,  however,  it  may  obtain  an  additional 
^  commission  of  the  peace '  for  itself,  or  even  an  independent 
Court  of  Quarter  Sessions.  Either,  then,  (a)  a  borough  con- 
tents itself  in  judicial  matters  with  the  jurisdiction  of  the 
county  Justices ;  or  (b)  it  obtains  the  appointment  of  addi- 
tional Justices  of  its  oAvn,  who  are,  however,  strictly,  members 
of  the  county  commission  and  can  hold  no  separate  Court  of 
Quarter  Sessions ;  or  (c)  it  acquires  the  privilege  of  having 
Quarter  Sessions  of  its  own.  In  the  latter  case  a  professional 
lawyer  is  appointed  by  the  Crown,  under  the  title  of  Eecorder, 
to  whom  is  given  the  power  of  two  Justices  acting  together  and 


1  Chalmers,  Local  Government,  p.  74. 


THE  GOVERNMENT  OF  ENGLAND. 


431 


the  exclusive  right  to  hold  Quarter  Sessions  —  who  is  made, 
as  it  were,  a  multiple  Justice  of  the  Peace. 

Boroughs  which  have  a  separate  commission  of  the  peace  are  known 
as  "  counties  of  towns  " ;  those  which  have  independent  Quarter  Ses- 
sions as  "quarter  sessions  boroughs." 

Every  mayor  is  ex  officio  Justice  of  the  Peace,  and  continues  to 
enjoy  tliat  oflSce  for  one  year  after  the  expiration  of  his  term  as  mayor. 
This  is  true  even  when  his  borough  has  no  separate  commission  of  the 
peace. 

797.  County  Boroughs.  —  In  every  borough  the  mayor, 
aldermen,  and  councillors,  sitting  together  as  a  single  body, 
constitute  the  '  Council '  of  the  corporation ;  and  the  powers 
of  the  Council,  if  the  borough  be  a  '  County  Borough,'  are  very 
broad  indeed.  Since  the  passage  of  the  Local  Government 
Act  of  1888,  it  is  necessar}'  to  distinguish,  in  the  matter  of 
powers,  several  classes  of  boroughs.  '  County  Boroughs  '  stand 
apart  from  the  coimties  in  which  they  lie,  for  all  j)urposes  of 
local  government,  as  completely  as  the  several  counties  stand 
apart  from  each  other.  Except  in  the  single  matter  of  the 
management  of  their  police  force,  they  may  not  even  arrange 
with  the  count}^  authorities  for  merging  borough  with  county 
affairs.  Their  Councils  may  be  said,  in  general  terms,  to  have, 
within  the  limits  of  the  borough,  all  the  powers  once  belong- 
ing to  the  county  Justices  except  those  strictly  judicial  in  their 
nature,  all  the  sanitary  powers  of  urban  sanitary  authorities, 
often  the  powers  of  school  administration  also,  —  all  regula- 
tive and  administrative  functions  except  those  of  the  poor- 
law  Union,  which  hitherto  has  spread  its  boundaries  quite 
irrespective  of  differences  between  town  and  country.  In  the 
case  of  these  '  county  boroughs,'  all  powers  conferred  upon  coun- 
ties are  powers  conferred  upon  them  also. 

If  the  Council  of  any  borough  or  of  a  county  make  representation  to 
the  Local  Government  Board  that  it  is  desirable  to  constitute  a  borough 
that  has  come  to  have  a  population  of  not  less  than  fifty  thousand  a 
'  county  borough/  the  Board  shall,  unless  there  be  some  special  reason 


432 


THE  GOVERNIVIENT  OF  ENGLAND. 


to  the  contrary,  hold  a  local  inquiry  and  provide  for  the  gift  of  county 
status  to  the  borough  or  not  as  they  think  best.  If  they  order  the 
borough  constituted  a  *  county  borough,'  the  order  is  provisional  merely. 

798.  Other  Boroughs.  —  Boroughs  which  have  not  been  put 
in  the  same  rank  with  counties  and  given  full  privileges  of 
self-administration  as  '  county  boroughs,'  fall  into  three  classes 
in  respect  of  their  governmental  relations  to  the  counties  in 
which  they  lie : 

(1)  Those  which  have  their  own  Quarter  Sessions  and  whose 
population  is  ten  thousand  or  more.  These  constitute  for  sev- 
eral purposes  of  local  government  parts  of  the  counties  in 
which  they  are  situate.  The  main  roads  which  pass  through 
them  are  cared  for  by  the  county  authorities,  unless  within 
twelve  months  after  the  date  at  which  the  Act  of  1888  went 
into  operation  (or  after  the  date  at  which  any  road  was  declared 
a  ^main  road')  the  urban  authorities  specially  reserved  the 
right  to  maintain  them  separately.  They  contribute  to  the 
county  funds  for  the  payment  of  the  costs  of  the  assizes  and 
judicial  sessions  held  in  them.  They  send  members,  too,  to 
the  County  Council.  Their  representatives,  however,  cannot 
vote  in  the  County  Council  on  questions  affecting  expenditures 
to  which  the  parishes  of  the  borough  do  not  contribute  by  as- 
sessment to  the  county  rates.  Beyond  the  few  matters  thus 
mentioned,  they  are  as  independent  and  as  self-sufficient  in  their 
organization  and  powers  as  the  ^county  boroughs'  themselves. 

(2)  Boroughs  which  have  separate  Quarter  Sessions  but 
whose  population  numbers  less  than  ten  thousand.  These  are 
made  by  the  'Act  of  1888  to  yield  to  the  Councils  of  the 
counties  in  which  they  lie  the  powers  once  exercised  by  their 
own  Councils  or  Justices  in  respect  of  the  maintenance  and 
management  of  pauper  lunatic  asylums,  their  control  of  coro- 
ners, their  appointment  of  analysts,  their  part  in  the  mainten- 
ance and  management  of  reformatory  and  industrial  schools, 
and  in  the  administration  of  the  Acts  relating  to  fish  conserva- 
tion, explosives,  and  highways  and  locomotives. 


THE  GOVERNMENT  OF  ENGLAND. 


438 


They  may,  in  view  of  their  diminished  powers,  petition  the  Crown  to 
revoke  the  grant  to  them  of  separate  Quarter  Sessions. 

(3)  Boroughs  which  have  not  a  separate  court  of  Quarter 
Sessions  and  whose  population  is  under  ten  thousand  are  for 
all  police  purposes  parts  of  the  counties  in  which  they  are 
situate,  and  have,  since  the  Act  of  1888  went  into  operation, 
parted  with  very  many  of  their  powers  to  the  County  Councils. 
They  have  been,  in  brief,  for  all  save  a  few  of  the  more  exclu- 
sively local  matters  of  self -direction,  merged  in  the  counties, 
in  whose  Councils  they  are,  of  course,  like  all  other  parts  of 
the  counties,  represented. 

799.  Every  borough  has  its  own  paid  Clerk  and  Treasurer,  who  are 
appointed  by  the  Council  and  hold  office  during  its  pleasure,  besides 
"  such  other  ofl&cers  as  have  usually  been  appointed  in  the  borough,  or 
as  the  Council  think  necessary."  If  a  borough  have  its  own  Quarter 
Sessions,  it  has  also,  as  incident  to  that  Court,  its  own  Clerk  of  the 
Peace  and  its  own  Coroner. 

800.  The  financial  powers  of  a  municipal  Council  are  in  all  cases 
strictly  limited  as  regards  the  borrowing  of  money.  "  In  each  instance, 
when  a  loan  is  required  by  a  municipal  corporation,  the  controlling 
authority  [the  Local  Government  Board]  is  to  be  applied  to  for  its 
consent.  A  local  inquiry,  after  due  notice,  is  then  held,  and  if  the  loan 
is  approved,  a  term  of  years  over  which  the  repayment  is  to  extend  is 
fixed  by  the  central  authority."  ^ 

801.  "The  accounts  of  most  local  authorities  are  now  audited  by  the 
Local  Government  Board,  but  boroughs  are  exempt  from  this  jurisdic- 
tion. The  audit  is  conducted  by  three  borough  auditors,  two  elected 
by  the  burgesses,  called  elective  auditors,  one  appointed  by  the  mayor, 
called  the  mayor's  auditor."  ^ 

802.  II.  Urban  Sanitary  Districts.  —  "  The  boundaries  of 
poor-law  unions  are  the  boundaries  of  rural  sanitary  districts, 
and  the  guardians  are  the  rural  sanitary  authority.  The  urban 
districts  are  carved  out  of  the  rural  districts  according  to  the 


1  Bunce,  Cobden  Club  Essays,  1882,  p.  283 ;  title,  "  Municipal  Boroughs 
and  Urban  Districts."  2  Chalmers,  p.  87. 


434 


THE  GOVERmiENT  OF  ENGLAND. 


exigencies  of  population."  ^  The  organization  of  an  Urban 
Sanitary  District  is  more  highly  developed  than  that  of  a 
rural  district,  urban  districts  are  in  reality  a  subordinate 
species  of  municipalities.  The  method  of  their  creation  is 
quite  simple.  If  the  Local  Government  Board  think  it  expedi- 
ent for  the  public  health  and  good  government  that  any  rural 
district  should  be  specially  organized  as  a  local  government 
district,  or  if  "  the  owners  and  ratepayers  of  any  district 
having  a  definite  boundary  "  desire  such  organization,  the  dis- 
trict may  be  created  an  Urban  Sanitary  District  by  order  of 
the  Board.  AVhen  such  an  order  is  issued  it  determines,  as 
does  the  incorporating  act  of  the  Privy  Council  in  the  case  of 
a  municipality,  the  boundaries  of  the  area,  arranges,  if  neces- 
sary, for  its  division  into  wards,  and  fixes  the  number  of 
members  to  sit  in  its  local  board.  For  the  rest,  the  District 
takes  its  constitution  from  the  Public  Health  Act  of  1875,  — 
an  Act  which  amends  and  codifies  legislation  of  1848  and  sub- 
sequent years.  That  Act  puts  the  government  of  the  District 
into  the  hands  of  a  board,  which  is  chosen  by  the  owners  and 
ratepayers  just  as  the  councillors  of  a  borough  are  (sec.  795), 
but  under  arrangements  which  admit  of  cumulative  voting  as 
in  the  case  of  Guardians  in  the  Unions  (sec.  791).  The 
powers  of  the  board  are  first  of  all  sanitary ;  but  there  are 
added  to  its  sanitary  powers  other  powers  which  make  it  in 
effect  a  lesser  municipal  council. 

803.  The  difference  between  boroughs  and  urban  districts  is 
not  at  all  a  difference  of  size, — boroughs  range  from  a  few 
hundred  to  half  a  million  inhabitants  and  urban  districts 
from  a  few  hundred  to  a  hundred  thousand ;  ^  it  has  hitherto 
been  a  difference,  apparently,  of  local  preference  rather,  and 
of  legal  convenience.  The  boundaries  of  a  borough,  when 
once  fijKcd  by  a  charter  of  incorporation,  could,  until  the  pas- 
sage of  the  Act  of  1888,  be  altered  only  by  a  special  Act  of 


1  Chalmers,  p.  109. 


2  Bunce,  p.  293. 


THE  GOVERNMENT  OF  ENGLAND. 


435 


Parliament :  it  is  much  easier,  of  course,  to  apply  to  the  Local 
Government  Board.  As  towns  already  incorporated  have 
grown,  therefore,  the  added  portions  have  become  indepen- 
dently incorporated  Urban  Sanitary  Districts,  and  thus  the 
town  has  been  pieced  out.  One  writer,  therefore,  was  able  to 
say,  in  1882,  "Nowhere,  from  one  end  of  England  to  the 
other,  do  we  find  an  instance  (Nottingham  alone  excepted)  of 
a  large  borough  which  is  municipally  self-contained,  and  con- 
sequently self-governing."  ^ 

804.  Under  the  Local  Government  Act  of  1888  the  boundaries  of  a 
borough  may,  as  we  have  seen  (sec.  779),  be  altered  by  provisional  order 
of  the  Local  Government  Board,  upon  the  address  of  the  borough  Coun- 
cil. This  order,  however,  being  provisional,  must  receive  the  sanction 
of  Parliament,  and  is  made  only  after  local  inquiry.  The  proceedings, 
therefore,  for  changing  the  boundaries  of  a  borough  are  still  much  more 
elaborate  and  difficult  than  the  free  action  of  the  Local  Government 
Board  with  reference  to  urban  sanitary  districts.  Formerly  a  separate 
bill,  not  introduced  by  the  government,  was  needed  to  change  the  boun- 
daries of  a  borough ;  now  an  Act  approving  a  provisional  order  backed 
by  the  Local  Government  Board  and  likely  to  be  acted  upon  favorably. 

Out  of  25,986,286  persons  in  England  and  Wales,  Mr.  Bunce  esti- 
mates, following  the  census  of  1881, 17,285,026  to  have  been  under  urban 
authority,  8,683,260  under  rural.2 

805.  Central  Control  of  Urban  Authorities.  —  Full  municipal 
corporations  look  partly  (in  the  matter  of  sanitary  regulation,  for  ex- 
ample,) to  the  Local  Government  Board  as  a  central  authority  exercising 
powers  of  supervision,  partly  (in  the  management  of  the  constabulary, 
for  instance,)  to  the  Home  Office,  and  partly  (if  seaports)  to  the  Board 
of  Trade.  Urban  Sanitary  Districts,  however,  have  but  a  single  au- 
thority set  over  tliem,  the  Local  Government  Board. 

806.  *  Improvement  Act  Districts.'  —  Besides  the  Urban  Sanitary 
Districts,  there  are  still  about  fifty  districts  which  have  boards  with 
quite  similar  powers  under  special  *  Improvement  Acts '  passed  from 
time  to  time  with  reference  to  particular  localities.  These  boards  are 
known  as  Improvement  Commissioners. 

807.  London.  — The  metropolis  was,  until  the  passage  of  the 
Act  of  1888,  the  unsolved  problem,  the  unregenerate  monster, 

1  Bunce,  p.  298.  2  j^i^.,  p.  285. 


436 


THE  GOVERNMENT  OF  ENGLAND. 


of  local  government  in  England.  The  vast  aggregation  of 
houses  and  population  known  by  the  world  as  ^  London, ' 
spreading  its  unwieldy  bulk,  as  it  did,  over  parts  of  the  three 
counties  of  Middlesex,  Surrey,  and  Kent,  consisted  of  the  City 
of  London,  a  small  corporation  at  its  centre  confined  within 
almost  forgotten  boundaries,  still  possessing  and  beligerently 
defending  mediaeval  privileges  and  following  mediaeval  types 
of  organization  and  procedure,  and,  round  about  this  ancient 
City  as  a  nucleus,  a  congeries  of  hundreds  of  old  parishes  and 
new  sanitary  districts  made  from  time  to  time  to  meet  the 
needs  of  newly  grown  portions  of  the  inorganic  mass.  This 
heterogeneous  body  of  mediaeval  trade  guilds,  vestries,  and 
sanitary  authorities  had  been  in  some  sort  bound  together 
since  1855  by  a  Metropolitan  Board  of  Works  which  exercised 
certain  powers  over  the  whole  area  outside  the  '  City.' 

808.  The  Local  Government  Act  of  1888  makes  of  the 
metropolis,  not  a  '  county  borough,'  but  a  county,  — the  '  Admin- 
istrative County  of  London '  —  with  its  own  Lord  Lieutenant, 
Sheriff,  and  Commission  of  the  Peace,  as  well  as  its  own  Coun- 
cil. This  leaves  the  parishes  and  district  authorities  of  its  area 
to  retain  such  powers  as  they  would  possess  were  they  situate 
in  a  rural,  instead  of  in  a  metropolitan,  county.  It  leaves  the 
City,  too,  to  occupy  its  separate  place  in  the  great  metropolitan 
county  as  a  quarter  sessions  borough  not  enjoying  separate 
county  privileges,  —  with  some  limitations  special  to  its  case. 

809.  The  number  of  councillors  in  the  London  County  Council  is 
fixed  at  twice  the  number  of  members  returned  to  Parliament,  at  the 
time  of  the  passage  of  the  Act  of  1888,  by  the  various  constituencies  of 
the  metropolitan  area.  The  Councillors,  thus,  number  118.  The 
Council  of  the  Metropolis  is  put  upon  an  exceptional  footing  with  regard 
to  its  quota  of  aldermen.  The  aldermen  are  to  be  one-sixth,  instead  of 
one-third,  as  many  as  the  councillors.  The  total  membership  of  the 
London  Council  is,  therefore,  137. 

810.  School  Districts.  —  The  only  important  area  remaining 
to  be  mentioned  is  the  School  District.    Under  the  great  Edu- 


THE  GOVERNMENT  OF  ENGLAND. 


437 


cation  Act  of  1870  and  the  supplementary  Acts  of  1876  and 
1880,  England  is  divided  for  educational  purposes  into  districts 
which  are  under  the  supervision  of  the  Education  Department 
of  the  Privy  Council.  These  districts  are  not  mapped  out 
quite  so  independently  of  previously  existing  boundaries  as 
other  local  areas  have  been;  they  are  made  to  coincide,  so 
far  as  possible,  with  parishes  or  with  municipal  boroughs,  the 
adjustment  of  their  boundaries  being  left,  how^ever,  to  the  dis- 
cretion of  the  Education  Department.  Those  districts  which 
desire  such  an  organization  are  given  an  elective  School  Board, 
chosen  by  the  ratepayers,  which  has  power  to  compel  attend- 
ance upon  the  schools  in  accordance  wdth  the  Education  Acts, 
and  to  provide,  under  the  direction  of  the  Department,  the 
necessary  school  accommodation.  Other  districts  are  governed 
in  school  matters  by  an  Attendance  Committee,  simply,  which 
is  a  sub-committee  of  some  previously  existing  authority  (in 
boroughs,  of  the  town  council,  for  instance)  and  whose  only 
duties  are  indicated  by  its  name. 

811.  The  plan  of  public  education  in  England  contemplates  the  assist- 
ance and  supplementing  of  private  endeavor.  Where  private  schools 
suffice  for  the  accommodation  of  the  school  population  of  a  district,  the 
government  simply  superintends,  and,  under  certain  conditions,  aids. 
Where  private  schools  are  insufficient,  on  the  other  hand,  the  govern- 
ment establishes  schools  of  its  own  under  the  control  of  a  school  board. 

812.  Central  Control. — The  plan  of  central  control  in 
England  is  manifestly  quite  indigenous.  The  central  govern- 
ment is  not  present  in  local  administration  in  the  person  of 
any  superintending  official  like  the  French  Prefect  (sees.  338, 
339,  346),  or  any  dominant  board  like  the  '  Administration '  of 
the  Prussian  Government  District  (sees.  480-483).  There 
has,  indeed,  been  developing  in  England  throughout  the  last 
half  of  this  century  a  marked  tendency  to  bring  local  authori- 
ties more  and  more  under  the  supervision  in  important  matters 
of  the  government  departments  in  London,  —  a  tendency  which 
has  led  to  the  concentration,  since  1871,  in  the  hands  of  the 


438 


THE  GOVERmiENT  OF  ENGLAND. 


Local  Government  Board  of  various  powers  once  scattered 
among  such  authorities  as  the  Home  Office,  the  Privy  Council, 
etc.  But  this  tendency,  which  is  towards  control,  has  not  been 
towards  centralization.  It  has,  so  far,  not  gone  beyond  making 
the  advice  of  the  central  authority  always  accessible  by  local 
officers  or  bodies,  and  its  consent  necessary  to  certain  classes 
of  local  undertakings.  The  central  government  has  not  itself 
often  assumed  powers  of  origination  or  initiative  in  local  affairs. 
Even  where  the  Local  Government  Board  is  given  completest 
power  the  choice  of  the  officers  who  are  to  put  its  regulations 
into  force  is  left  with  the  ratepayers  in  the  districts  concerned. 
Thus  the  authority  of  the  Board  over  the  Guardians  of  the 
Unions  is  complete ;  but  the  Guardians  are  elected  in  the  par- 
ishes. Its  authority  in  sanitary  matters  makes  its  directions 
imperative  as  to  the  execution  of  the  Public  Health  Acts ;  but 
in  many  cases  the  local  health  officers  are  appointees  of  the 
local  bodies.  It  may  disallow  the  by-laws  passed  by  the  boards 
of  sanitary  districts,  and  the  by-laws  enacted  by  the  county 
authorities,  unless  they  affect  nuisances,  may  be  annulled  by 
an  order  in  Council ;  but  these  are  powers  sparingly,  not  habit- 
ually, used.  In  the  matter  of  borrowing  money,  too,  local 
authorities  are  narrowly  bound  by  the  action  of  the  Local 
Government  Board  ;  and  its  assent  to  propositions  to  raise 
loans  is  seldom  given  without  very  thorough  inquiry  and  with- 
out good  reason  shown.  But  all  these  are  functions  of  system, 
so  to  say,  rather  than  of  centralization.  Co-ordination  in 
methods  of  poor-relief  is  sought,  that  relief  being  given  under 
national  statutes,  and  co-operation  of  central  with  local  judg- 
ment in  financial  matters,  local  debts  constituting  a  very 
proper  subdivision  of  national  finance.  But  th6  spirit  in  which 
the  control  is  exercised,  as  well  as  the  absence  of  permanent 
officials  representing  the  central  authority  in  local  government, 
and  even  of  permanent  instrumentalities  for  the  administration 
of  financial  advice,  bespeak  a  system  of  co-operation  and  advice 
rather  than  of  centralization. 


THE  GOVERNMENT  OP  ENGLAND. 


439 


The  Government  of  the  English  Colonies. 

813.  English  Colonial  Expansion.  —  Doubtless  the  most 
significant  and  momentous  fact  of  modern  history  is  the  wide 
diffusion  of  the  English  race,  the  sweep  of  its  commerce,  the 
dominance  of  its  institutions,  its  imperial  control  of  the  desti- 
nies of  half  the  globe.  When,  by  reason  of  the  closing  of  the 
old  doors  to  the  East  by  the  Turk  and  the  consequent  turning 
about  of  Europe  to  face  the  Atlantic  instead  of  the  Mediterra- 
nean, England  was  put  at  the  front  instead  of  at  the  back  of 
the  nations  of  the  Continent,  a  profound  revolution  was  pre- 
pared in  the  politics  of  the  world.  England  soon  defeated 
Holland  and  Spain  and  Portugal,  her  rivals  for  the  control  of 
the  Atlantic  and  its  new  continents  ;  and  steadily,  step  by  step, 
she  has  taken  possession  of  every  new  land  worth  the  having 
in  whatever  quarter  of  the  globe.  With  her  conquests  and  her 
settlers  have  gone  also  her  institutions,  until  now  her  people 
everywhere  stand  for  types  of  free  men,  her  institutions  for 
models  of  free  government. 

814.  English  Colonial  Policy.  —  It  is  only  by  slow  degrees, 
however,  that  England  has  learned  the  right  policy  towards  her 
colonies.  She  began,  as  Eome  did,  by  regarding  her  possessions 
as  estates,  to  be  farmed  for  her  own  selfish  benefit.  Nothing 
less  than  the  loss  of  America  sufficed  to  teach  her  how  short- 
sighted such  a  policy  was.  But,  unlike  Rome,  she  was  fortu- 
nate enough  to  lose  the  best  part  of  her  possessions  without 
being  herself  overwhelmed ;  and  even  after  the  loss  of  America, 
time  and  opportunity  offered  for  the  building  up  of  another 
colonial  empire  scarcely  less  great. 

815.  Towards  her  present  colonies  her  policy  is  most  liberal ; 
for  the  England  of  the  present  is  a  very  different  England 
from  that  which  drove  America  into  rebellion.  Even  the  nota- 
ble lesson  emphasized  in  the  loss  of  America  would  not  have 
sufficed  to  bring  England  to  her  senses  touching  her  true  inter- 
ests in  the  colonies,  had  she  not  herself  speedily  thereafter 


440 


THE  GOVERNMENT  OF  ENGLAND. 


been  brought  by  other  causes  to  a  change  of  heart.  The  move- 
ments of  opinion  which  stirred  her  to  religious  revival,  to 
prison  reform,  to  enlightened  charity,  to  the  reform  of  par- 
liamentary rej)resentation,  to  a  general  social  and  political 
regeneration,  stirred  lier  also,  no  doubt,  to  vouchsafe  to  her 
colonists  full  rights  as  Englishmen. 

816.  Lord  Durham  in  Canada.  —  The  turning  point  was 
reached  in  1837,  when  a  rebellion  broke  out  in  Lower  Canada. 
Lower  Canada  was  French  Canada.  Its  government,  like  the 
governments  of  the  American  states  south  of  it  in  their 
own  colonial  times,  consisted  of  an  Executive,  a  Legislative 
Council  nominated  by  the  Crown  and  a  legislative  chamber 
elected  by  the  colonists ;  the  colonists  had  been  exasperated 
by  just  such  arbitrariness  and  lack  of  sympathy  on  the  part  of 
the  Governor  and  his  Council,  and  just  such  efforts  to  make  the 
salaries  and  the  maintenance  of  the  judicial  officers  of  the  col- 
ony independent  of  the  appropriations  voted  by  the  popular 
assembly,  as  had  hastened  the  separation  of  the  United  States 
from  England ;  and  at  last  rebellion  had  been  made  to  speak 
the  demands  of  the  colonists  for  constitutional  reform.  The  re- 
bellion was  put  down,  but  the  defeated  colonists  were  not  treated 
as  they  would  have  been  in  1776.  A  royal  commissioner  was 
sent  out  to  them  from  the  mother  country  to  redress  their 
grievances  by  liberal  measures  of  concession  and  reform.  This 
commissioner  was  Lord  Durham.  He  spoiled  his  mission  by 
well-meant  but  arbitrary  conduct  which  was  misunderstood  at 
home,  and  was  recalled  ;  but  his  report  upon  the  condition 
of  Canada  and  the  measures  necessary  for  her  pacification 
may  justly  be  called  the  fountain  head  of  all  that  England 
has  since  done  for  the  betterment  of  government  in  her  colo- 
nies. Lord  Durham  recommended  nothing  less  than  complete 
self-government,  with  interference  from  England  in  nothing 
but  questions  immediately  and  evidently  affecting  imperial 
interests.  1847  saw  independent  responsible  self-government 
completely  established  in  Canada,  and  subsequent  years  have 


THE  GOVERNMENT  OF  ENGLAND. 


441 


seen  it  extended  to  all  the  British  colonies  capable  of  self- 
direction. 

817.  The  Self-Governing  Colonies.  — The  English  colonies, 
as  at  present  organized,  may  be  roughly  classified  in  two  groups 
as  (a)  Self-governing  and  (6)  Croivn  colonies.  The  self-govern- 
ing colonies  are  nine  in  number ;  namel}^,  Canada,  Newfound- 
land, Cape  of  Good  Hope,  the  four  colonies  of  the  east  and 
south  of  Australia  (Queensland,  New  South  Wales,  Victoria, 
South  Australia),  Tasmania,  New  Zealand.  In  all  of  these 
there  is  practically  complete  independence  of  legislation  in 
all  matters  not  directly  touching  imperial  interests  :  and  in  all 
there  is  full  responsible  government,  —  government,  that  is, 
through  ministers  responsible  to  representatives  of  the  people 
for  their  policy  and  for  all  executive  acts,  because  chosen  from 
and  representing  the  majority  in  the  popular  chamber.  In  the 
Cape  of  Good  Hope,  Tasmania,  Victoria,  and  South  Australia, 
both  branches  of  the  legislature  are  elected ;  in  the  other  five 
the  upper  chamber,  the  Legislative  Council,  as  it  is  invariably 
called  outside  of  Canada,  is  nominated  by  the  Executive.  But 
the  origin  of  the  upper  chamber  does  not  affect  the  full  respon- 
sibility of  the  ministers  or  the  practically  complete  self-direc- 
tion of  the  colony. 

818.  The  Government  of  Canada. — In  1840  Parliament 
provided  by  Act  for  the  union  of  Upper  and  Lower  Canada 
(now  the  provinces  of  Ontario  and  Quebec)  upon  a  basis  sug- 
gested by  Lord  Durham's  report ;  but  the  legislative  union  of 
these  two  provinces,  the  one  English,  the  other  almost  wholly 
French,  was  ill-advised  and  proved  provisional  only.  Although 
an  Act  of  1854  granted  to  the  united  colonies  a  government 
as  nearly  as  might  be  modelled  upon  the  government  of  Eng- 
land herself,  no  satisfactory  basis  of  self-government  was 
reached  until,  by  the  ^British  North  America  Act'  of  1867, 
the  colonies  were  at  once  separated  and  re-integrated  by  means 
of  a  federal  constitution.  That  Act  is  the  present  constitution 
of  the  "Dominion  of  Canada."    Under  that  constitution  the 


442 


THE  GOVERNMENT  OF  ENGLAND. 


seven  provinces  novr  comprised  within  the  Dominion,  namely, 
Ontario,  Quebec,  ZSTova  Scotia,  Xew  Brunswick,  Manitoba, 
British  Columbia,  and  Prince  Edward  Island,  have  each  a  sepa- 
rate parliament  and  administration.  In  each  a  Lieutenant-G-ov- 
ernor  presides ;  in  each,  as  in  the  Dominion  itself,  there  is  a 
ministry  responsible  for  its  policy  and  executive  acts  to  a  par- 
liament fully  equipped  for  self-direction  in  local  affairs. 

819.  The  provisions  of  the  British  North  America  Act  were  drafted 
in  Canada  and  accepted  by  tlie  Parliament  in  England  without  altera- 
tion. In  the  division  of  powers  which  they  make  between  the  govern- 
ment of  the  Dominion  and  the  governments  of  the  several  provinces, 
they  differ  very  radically  in  character  from  the  provisions  of  our  own 
federal  constitution.  Our  constitution  grants  certain  specified  powers 
to  the  general  government  and  reserves  the  rest  to  the  states ;  the 
British  North  America  Act,  on  the  contrary,  grants  certain  specified 
powers  to  the  provinces  and  reserves  all  others  to  the  government  of 
the  Dominion.  Among  the  powers  thus  reserved  to  the  federal  govern- 
ment is  tliat  of  enacting  all  criminal  laws. 

In  Ontario,  British  Columbia,  and  Manitoba,  the  legislature  consists 
of  but  a  single  house. 

820.  The  government  of  the  Dominion  is  a  very  faithful  re- 
production of  the  government  of  the  mother  country.  The 
Crown  is  represented  by  the  Governor-General,  who  acts  in  the 
administration  of  the  colony  as  the  Crown  acts  in  the  adminis- 
tration of  the  kingdom,  through  responsible  ministers,  and 
whose  veto  upon  legislation  is  almost  never  used.  His  cabinet 
is  known  as  the  Queen's  Privy  Council  and  consists  of  fifteen 
members,  representing  the  majority  in  the  popular  house  of  the 
legislature,  leading  that  house  in  legislation,  and  in  all  its  func- 
tions following  the  precedents  of  responsible  cabinet  govern- 
ment established  in  England.  The  legislature  consists  of  two 
houses,  the  Senate  and  the  House  of  Commons.  The  Senate 
consists  of  seventy-eight  members  nominated  for  life  by  the 
Governor-General,  —  that  is,  in  effect,  appointed  by  the  minis- 
ters ;  for  in  the  composition  of  the  Senate,  as  in  the  creation  of 
peers  at  home,  the  advice  of  the  ministers  is  decisive.  The 


THE  GOVERNMENT  OF  ENGLAND. 


443 


House  of  Commons  consists  at  present  of  two  hundred  and 
fifteen  members  elected  from  the  several  provinces,  for  a  term 
of  five  years,  upon  the  basis  of  one  representative  for  every 
twenty  thousand  inhabitants,  it  being  understood,  however, 
that  Quebec  shall  always  have  sixty-five  members. 

821.  Besides  his  veto,  the  Governor-General  has  the  riglit  to  reserve 
measures  for  the  consideration  of  the  Crown  (/.«.,  of  the  ministers  in 
England),  and  this  right  he  sometimes  exercises.  He  may  also  disallow 
acts  of  tlie  provincial  legislatures. 

822.  The  fifteen  ministers  composing  the  Council  or  cabinet  are,  a 
Prime  Minister  and  President  of  the  Council,  a  Minister  of  Public 
"Works,  a  Minister  of  Railways  and  Canals,  a  Minister  of  Customs,  a 
Minister  of  Militia  and  Defence,  a  Minister  of  Agriculture,  a  Minister 
of  Inland  Revenue,  a  Secretary  of  State,  a  Minister  of  Justice,  a  Minister 
of  Finance,  a  Minister  of  Marine  and  Fisheries,  a  Minister  of  the  Inte- 
rior, and  a  Postmaster-General,  besides  two  ministers  without  portfolios. 

823.  The  distribution  of  representation  in  the  Dominion  House  of 
Commons  is  at  present  as  follows :  Ontario  has  92  members,  Quebec  65, 
Nova  Scotia  21,  New  Brunswick  16,  Manitoba  5,  British  Columbia  6, 
Prince  Edward  Island  6,  and  the  North  West  Territories  (not  yet  fully 
admitted  to  provincial  rank)  4.  The  representatives  are  elected  by  a 
franchise  based  upon  a  small  property  qualification. 

824.  The  Parliament  of  the  Dominion  may  be  dissolved  by  the 
Governor-General  upon  the  advice  of  the  ministers  and  a  new  election 
held,  as  in  England,  when  an  appeal  to  the  constituencies  is  deemed 
necessary  or  desirable. 

825.  The  Governments  of  Australia.  —  The  governments  of 
the  Australian  colonies  are  not  different  in  principle,  and  are 
very  slightly  different  in  structure,  from  the  government  of 
Canada,  except  that  in  Australia  the  colonies  stand  apart  in 
complete  independence  of  each  other,  having  no  federal  bonds, 
no  common  authority  nearer  than  the  mother  country.  Alike 
in  Queensland  and  in  New  South  Wales  there  is  a  nominated 
Legislative  Council  and  an  elected  Legislative  Assembly  ;  but 
in  Queensland  a  property  qualification  is  required  of  the  electors 
who  choose  the  lower  house,  while  in  New  South  Wales  there 
is  no  such  limitation  upon  the  suffrage.    In  South  Australia 


444 


THE  GOVERNMENT  OF  ENGLAND. 


and  Victoria  both  houses  of  the  legislature  are  elected ;  in  both 
a  property  qualification  is  required  of  the  electors  who  choose 
the  members  of  the  upper  house,  and  in  Victoria  a  like  qualifi- 
cation for  membership  of  the  upper  house,  also.  In  Victoria 
certain  educational  and  professional  qualifications  are  allowed 
to  take  the  place  of  a  property  qualification.  In  each  of  the 
colonies  the  governor  plays  the  part  of  a  constitutional  monarch, 
acting  always  upon  the  advice  of  ministers  responsible  to  the 
popular  chamber. 

826.  The  Powers  of  the  Colonial  Courts.  — The  action  of 
the  courts  in  the  colonies  in  certain  questions  furnishes  an  in- 
structive counterpart  to  the  constitutional  functions  of  our  own 
courts.  The  colonial  governments  are  conducted  under  writ- 
ten constitutions  as  our  own  governments  are,  though  their 
constitutions  are  imperial  statutes  while  ours  are  drafted  by 
conventions  and  adopted  by  vote  of  the  people.  And  colonial 
courts  exercise  the  same  power  of  constitutional  interpretation 
that  belongs  to  our  own  courts  and  has  often  been  carelessly 
assumed  to  be  a  peculiar  prerogative  of  theirs.  They  test  acts 
of  legislation  by  the  grants  of  power  under  which  they  are 
enacted,  an  appeal  lying  from  them  to  the  Judicial  Committee 
of  the  Privy  Council  in  England,  which  serves  as  a  general 
supreme  court  for  the  colonies  (sees.  736,  869). 

The  constitutionality  of  laws  passed  by  the  Dominion  Parliament  in 
Canada  is  considered  first,  of  course,  by  the  courts  of  the  Dominion, 
going  thence,  if  appealed,  to  the  Privy  Council. 

827.  The  Crown  Colonies.  —  All  those  colonies  which  have 
not  responsible  self-government  are  classed  as  Crown  colonies, 
colonies  more  or  less  completely  directed  by  the  Colonial 
Ofiice  in  London.  They  range  in  organization  all  the  way 
from  mere  military  administrations,  such  as  have  been  estab- 
lished in  St.  Helena  and  Gibraltar,  through  those  which,  like 
Trinidad  and  the  Straits  Settlements,  have  both  a  nominated 
Executive  and  a  nominated  Legislative  Council,  and  those  like 


THE  GOVERNMENT  OF  ENGLAND. 


445 


Jamaica  and  Western  Australia,  whose  nominated  Executive 
is  associated  with,  a  Legislative  Council  in  part  elected,  to 
those  like  the  Bahamas  and  Bermuda,  in  which  the  Councils 
are  altogether  elected,  but  which  have  no  responsible  ministry. 

828.  Powers  of  Colonial  Governors. — It  is  interesting  to 
have  the  testimony  of  one  of  the  most  capable  and  eminent  of 
English  colonial  administrators  as  to  the  relative  desirability 
of  the  post  of  governor  in  a  colony  in  which  he  is  governor 
indeed,  with  no  ministers  empowered  to  force  their  advice 
upon  him,  and  in  a  colony  Avhere  he  must  play  the  unobtrusive 
part  of  constitutional  monarch.  Lord  Elgin  says  with  great 
confidence,  in  his  Letters,  that  his  position  as  governor  of  Can- 
ada was  a  position  of  greater  ofiicial  power  than  his  position, 
previously  held,  as  governor  of  Jamaica.  He  declares  his  un- 
hesitating belief  that  there  is  more  room  for  the  exercise  of 
influence  on  the  part  of  the  governor  "  in  such  a  colony  as  Can- 
ada, where  he  must  keep  in  the  background  and  scrupulously 
heed  his  ministers,  than  under  any  other  arrangement  that  ever 
was  before  devised,  although  his  influence  there  is  of  course 
"  wholly  moral  —  an  influence  of  suasion,  sympathy,  and  mod- 
eration, which  softens  the  temper  while  it  elevates  the  aims  of 
local  politics."  ^  This  is  but  another  way  of  stating  the  unques- 
tionable truth  that  it  is  easier  as  well  as  wiser,  to  govern  with 
the  consent  and  co-operation  of  the  governed  than  without  it  — 
easier  to  rule  as  a  friend  than  as  a  master. 

829.  India.  —  India  stands  in  matters  of  government,  as  in 
so  many  other  respects,  entirely  apart  from  the  rest  of  the 
British  Empire.  It  is  governed,  through  the  instrumentality 
of  its  Governor-General  and  his  Council,  directly  from  London 
by  a  member  of  the  Cabinet,  the  Secretary  of  State  for  India. 
The  Secretary  of  State  is  assisted  by  a  Council  of  fifteen  mem- 
bers appointed  by  the  Crown  from  among  persons  who  have  re- 
sided or  served  in  India.    Acting  under  the  Secretary  of  State 

1  Letters  and  Journals  of  Lord  Elgin,  ed.  by  Theodore  Walrond,  Lond., 
1872,  p.  126. 


446 


THE  GOVERNMENT  OF  ENGLAND. 


and  his  Council  in  London,  there  is  the  Governor-General  of 
India,  who  is  also  assisted  by  a  Council,  —  a  Council  which  is 
first  of  all  administrative,  but  which,  when  re-enforced  by  from 
six  to  twelve  additional  members  appointed  by  the  Governor- 
General,  has  also  the  functions  of  a  legislative  council. 

The  work  of  the  Governor-General's  Council  is  divided  among  five 
departments,  those,  namely,  of  foreign  affairs,  finances,  the  interior, 
military  administration,  and  public  works ;  but  these  departments  do 
not  create  a  ministry ;  they  are  regarded  simply  as  committees  of  the 
Council. 

The  members  of  the  Council,  six  in  number,  besides  a  seventh  so- 
called  extraordinary  member  who  is  commander-in-chief  of  the  forces, 
are  appointed  by  the  Crown.  The  sessions  of  the  re-enforced  or  legis- 
lative council  are  held  always  in  public. 

830.  Xot  all  of  India  is  directly  administered  by  the  English 
government :  there  are  numerous  native  states,  acting  with  sub- 
stantial independence  in  local  affairs,  though  under  English 
overlordship  and  control.  Such  part  of  the  vast  territory  as 
is  administered  directly  by  English  officials  is  divided  into  eight 
provinces,  of  which  the  chief  in  importance  are  Madras  and 
Bombay.  The  governors  of  Madras  and  Bombay  are  appointed 
by  the  Crown  and  are  assisted,  as  the  Governor-General  is, 
by  two  councils,  administrative  and  legislative.  The  Lieuten- 
ant-Governors of  Bengal  and  the  Xorth  West  Provinces  are 
appointed  by  the  Governor-General  and  assisted  by  an  admin- 
istrative council  only.  The  Lieutenant-Governors  or  Commis- 
sioners of  the  other  provinces,  who  are  also  appointed  by  the 
Governor-General,  are  without  councils. 

831.  Greater  Britain.  —  Greater  Britain,  the  world  of 
English  colonies,  differs  very  materially  from  Greater  Greece, 
the  widespread  Hellas  of  the  ancient  world.  Hellas  was  dis- 
integrate :  the  Greeks  carried  with  them,  as  of  course,  Greek 
institutions,  but  only  to  allow  those  institutions  wide  differen- 
tiation 5  in  no  way  did  Greek  settlement  signify  race  integra- 
tion, a  national  nexus  of  rule.    Englishmen,  on  the  contrary, 


THE  GOVERNMENT  OF  ENGLAND. 


447 


in  English  colonies,  maintain  a  homogeneity  and  integration 
both  of  race  and  of  institutions  which  have  drawn  the  four  parts 
of  the  world  together  under  common  influences,  if  they  have 
not  compacted  them  for  a  common  destiny.  Throughout  Eu- 
rope reformers  have  copied  English  political  arrangements ; 
the  colonists  have  not  copied  them,  they  have  extended  and 
are  perpetuating  and  perfecting  them. 


Representative  Authorities. 

Stubbs,  Wm.,  "Constitutional  History  of  England."    3  vols.  Oxford, 
1883. 

Hallam,  H.,  "Constitutional  History  of  England."     2  vols.  N.  Y., 
1880. 

May,  Sir  T.  E.,  "Constitutional  History  of  England."  2  vols.  X.  Y., 
1880. 

Taswell-LangmeaJ,  "English  Constitutional  History."    London  and 

Boston.    3  ed.  1886. 
Gneist,  R.,  "  History  of  the  English  Constitution."  2  vols.  X.  Y.,  1886. 

"Student's  History  of  the  English  Parliament."    N.  Y.,  1887. 

"  Self-Governnient,    Communalverfassung  und  Verwaltungs- 
gerichte."   3d  ed    Berlin,  1871. 
Bagehot,  Walter,  "The  EngHsh  Constitution."    N.  Y.,  1882. 
English  Citizen  Series :  H.  D.  Traill,  "  Central  Government." 

M.  D.  Chalmers,  "  Local  Government." 

F.  W.  Maitland,  *'  Justice  and  Police." 

S.  Walpole,  "  The  Electorate  and  the  Legislature." 

T.  W.  Foiole,  "  The  Poor  Law." 

/.  S.  Cotton  ^  E.  J.  Payne,  "  Colonies  and  Dependencies." 
Hearn,  W.  E.,  "  The  Government  of  England."  2d  ed.   London,  1887. 
Dicey,  A.  V.,  "  The  Privy  Council."    London,  1887. 

"  The  Law  of  the  Constitution."   2d  ed.   London,  1886. 
Cobden  Club  Essays,  1882  :  "  Local  Government  and  Taxation  iii  the 

United  Kingdom." 
Imperial  Parliament  Series:  "Local  Administration,"  by  W.  Rath- 
bone,  A.  Pell,  and  F.  C.  Montague.   London,  1885. 


448 


THE  GOVERNMENT  OF  ENGLAND. 


Todd,  Alpheus,  "  Parliamentary  Government  in  England."  New  ed. 
London  and  N.  Y.,  1888-'9. 

"  Parliamentary  Government  in  the  British  Colonies."  Boston, 
1880. 

Fielden,  H.  St.  C.,  "A  Short  Constitutional  History  of  England"  (a 
serviceable  topical  epitome) .    Oxford  &  London,  1882. 

For  the  local  government  reforms  of  1888,  see : 

Baker,  Chas.  E.,  "  The  Local  Government  Act,  1888,  with  Notes  and 
Index."    London,  1888. 

Holdsworth,  W.  A.,  "  The  Local  Government  Act,  1888,  with  Introduc- 
tion and  Notes."    London,  1888. 


XI. 


THE  GOVERNMENT  OF  THE  UNITED  STATES. 

832.  The  English  Occupation  of  America.  —  The  political 
institutions  of  the  United  States  are  in  all  their  main  features 
simply  the  political  institutions  of  England,  as  transplanted 
by  English  colonists  in  the  course  of  the  two  centuries  which 
preceded  our  own,  worked  out  through  a  fresh  development  to 
new  and  characteristic  forms.  Though  now  possessing  so  large 
an  admixture  of  foreign  blood,  a  large  majority  of  the  people 
of  the  United  States  are  still  of  British  extraction  ;  and  at  first 
the  settlements  of  New  England  and  the  South  contained  no 
other  element.  In  the  far  North,  in  what  is  now  Canada,  there 
were  French  settlements ;  in  Florida  there  were  colonists  from 
Spain,  and  at  the  mouth  of  the  Mississippi  also  there  was  a 
French  population;  the  Dutch  had  settled  upon  the  Hudson 
and  held  the  great  port  at  its  mouth,  and  the  Swedes  had 
established  themselves  on  the  Delaware :  all  along  the  coast 
there  was  rivalry  between  the  western  nations  of  Europe  for 
the  possession  of  the  new  continent.  But  by  steady  and  for 
the  most  part  easy  steps  of  aggression  the  English  extended 
their  domain  and  won  the  best  regions  of  the  great  coast.  New 
England,  Virginia,  and  the  Carolinas  were  never  seriously  dis- 
puted against  them;  and,  these  once  possessed,  the  interven- 
ing foreigner  was  soon  thrust  out :  so  that  the  English  power 
had  presently  a  compact  and  centred  mass  which  could  not  be 
dislodged,  and  whose  ultimate  expansion  over  the  whole  con- 
tinent it  proved  impossible  to  stay.    England  was  not  long  in 


450       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

widening  her  colonial  borders  :  the  French  power  was  crushed 
out  in  the  North,  the  Spanish  power  was  limited  in  the  South, 
and  the  colonies  had  only  to  become  free  to  develop  energy 
more  than  sufficient  to  make  all  the  most  competed-for  por- 
tions of  the  continent  thoroughly  English,  —  thoroughly  Anglo- 
American. 

833.  Adaptation  of  English  Institutions.  —  This  growth  of 
the  English  power  in  America  involved  as  of  course  a  corre- 
sponding expansion  of  English  local  institutions  of  government ; 
as  America  became  English,  English  institutions  in  the  col- 
onies became  American :  they  adapted  themselves,  i.e.,  to  the 
new  problems  and  the  new  conveniences  of  political  life  in 
separate  colonies,  —  colonies  struggling  at  first,  then  expand- 
ing, at  last  triumphing;  and  without  losing  their  English 
character  gained  an  American  form  and  flavor. 

834.  It  would  be  an  utterly  erroneous,  an  entirely  reversed, 
statement  of  our  colonial  history  to  say  that  the  English 
planted  states  in  America:  they  planted  small  isolated  set- 
tlements, and  these  settlements  grew  into  states.  The  process, 
in  other  words,  was  from  local,  through  state,  to  national  or- 
ganization. And  not  everywhere  among  the  English  on  the 
new  continent  was  the  form  of  local  government  at  first  adopted 
the  same  :  there  was  no  invariable  pattern,  but  everywhere,  on 
the  contrary,  a  spontaneous  adjustment  of  political  means  to 
place  and  circumstance.  By  all  the  settlements  alike  English 
precedent  was  followed,  but  not  the  same  English  precedent ; 
each  colony,  with  the  true  English  sagacity  of  practical  habit, 
borrowed  what  was  best  suited  to  its  own  situation.  New  Eng- 
land had  one  system,  Virginia  another.  New  Jersey  and  Penn- 
sylvania still  a  third,  compounded  after  a  sort  of  the  other 
two. 

835.  The  New  England  Colonies.  —  In  New  England  the 
centre  of  government  was  always  the  town,  with  its  church  and 
schoolhouse  and  its  neighborly  cluster  of  houses  gathered  about 
these.    The  soil  on  the  coast  where  the  first  settlers  established 


THE  GOVERNjMENT  OF  THE  UNITED  STATES.  451 

themselves  was  shallow  and  slow  to  yield  returns  even  to  hard 
and  assiduous  toil ;  the  climate  was  rigorous,  with  its  long 
winters  and  its  bleak  coast  winds ;  every  circumstance  invited 
to  close  settlement  and  trade,  to  the  intimate  relationships  of 
commerce  and  the  adventures  of  sea-faring  rather  than  to  the 
wide-spreading  settlements  characteristic  of  an  agricultural 
population. 

836.  The  first  New  Englanders,  moreover,  were  religious 
refugees.  They  had  left  the  Old  World  to  escape  the  Old 
World's  persecutions  and  in  order  to  find  independence  of 
worship ;  they  were  establishing  a  church  as  well  as  a  com- 
munity ;  they  acted  as  organized  congregations  ;  their  life  was 
both  spiritually  and  temporally  organic.  Close  geographical 
association,  therefore,  such  as  was  virtually  forced  upon  them 
by  the  conditions  of  livelihood  by  which  the}'  found  themselves 
constrained,  accorded  well  with  their  higher  social  purposes. 
The  church  could  be  made,  by  such  association,  and  accordingly 
was  made,  the  vital  nerve-centre  of  their  union :  the  minister 
was  the  ruling  head  of  the  community,  and  church  membership 
was  in  several  of  the  settlements  recognized  as  identical  with 
citizenship. 

837.  The  Separate  Towns.  —  The  several  parts  of  the  New 
England  coast  were  settled  by  quite  independent  groups  of  set- 
tlers. There  was  the  Plymouth  colony  at  Plymouth,  and  alto- 
gether distinct  from  it,  the  Massachusetts  Bay  colony  at  Salem 
and  Charlestown.  To  the  south  of  these,  founded  by  men  dis- 
satisfied with  the  Massachusetts  government,  were  Portsmouth, 
Newport,  and  Providence,  in  what  is  now  Ehode  Island.  On 
the  Connecticut  river  other  wanderers  from  Massachusetts  built 
Hartford  and  Windsor  and  Wethersfield.  Saybrook,  at  the 
mouth  of  the  Connecticut  river,  was  settled  direct  from  Eng- 
land ;  so  also  was  the  colony  of  New  Haven,  on  the  coast  of 
Long  Island  Sound  west  of  the  Connecticut.  From  year  to 
year  the  planting  of  towns  w^ent  diligently  on :  almost  every 
town  became  the  prolific  mother  of  towns,  which  either  sprang 


452       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

up  close  about  it  and  retained  a  sort  of  dependence  upon  it,  or, 
planted  at  a  distance,  ventured  upon  an  entirely  separate  life 
in  the  wilderness  (sees.  115,  116,  118). 

838.  Union  of  the  Towns.  —  Gradually  the  towns  of  each 
of  the  general  regions  mentioned  drew  together  into  the  colo- 
nies known  to  later  times,  the  colonies  which  were  to  form  the 
Union.  Plymouth  merged  in  Massachusetts ;  Portsmouth, 
Newport,  and  Providence  became  but  parts  of  Ehode  Island ; 
New  Haven  was  joined  to  Connecticut.  But  at  first  these 
larger  colonies  were  scarcely  more  than  town  leagues :  each 
town  retained  unaltered  its  separate  organization  and  a  perfect 
independence  in  the  regulation  of  its  own  local  affairs.  In 
Ehode  Island,  particularly,  their  jealousy  of  each  other  and 
their  reluctance  to  expose  themselves  to  anything  like  a  loss 
of  perfect  autonomy  long  kept  the  common  government  which 
they  most  of  the  time  maintained  at  a  balance  between  union 
and  dissolution.  In  the  other  New  England  colonies  the  same 
influences  manifested  themselves,  though  in  a  less  degree. 
The  town  system  which  everywhere  prevailed  was  by  its 
nature  an  extremely  decentralized  form  of  government:  gov- 
ernment, so  to  say,  came  to  a  separate  head  in  each  locality : 
and  the  chief  vitality  was  in  these  several  self-governing  units 
of  each  group  rather  than  in  the  bonds  which  connected  them 
with  each  other. 

839.  Forms  of  Town  Government.  —  The  form  of  town 
government  was  everywhere  such  as  it  was  quite  natural  that 
Englishmen  should  have  set  up.  The  names  of  the  town  offi- 
cers were  borrowed  from  the  borough  governments  at  home, 
and  their  duties  were,  as  nearly  as  circumstances  warranted, 
the  same  as  the  duties  of  the  ofiicers  whose  names  they  bore. 
But  the  New  England  town  was,  at  the  same  time,  in  many  of 
its  most  important  and  most  characteristic  features,  rather  a 
reversion  to  older  types  of  government  than  a  transplanted 
cutting  of  the  towns  which  the  settlers  had  left  behind  them 
in  the  England  of  the  seventeenth  century.    There  was  in  it 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  4r)3 

of  course  none  of  the  elaborated  class  privilege  that  narrowed 
the  town  governments  of  the  England  of  that  time.  All  the 
townsmen  met  in  town  meeting  and  there  elected  their  officers : 
those  officers  were  responsible  to  them  and  always  rendered 
careful  account  of  their  actions  to  the  body  which  elected 
them.  G-enerally  the  most  important  of  these  officers  were 
called  Selectmen,  —  men  selected  by  the  town  meeting  to  carry 
on  the  necessary  public  business  of  the  community,  —  and 
these  Selectmen  stood  in  the  closest  relations  of  counsel  and 
responsibility  to  the  town  meeting.  In  the  earliest  times  the 
franchise  was  restricted,  in  Massachusetts  and  Xew  Haven  at 
least,  to  those  who  were  church  members,  and  many  were  ex- 
cluded by  this  rule  from  participation  in  the  government ;  but 
even  under  such  circumstances  there  was  real  and  eifective 
self-government.  The  towns  lacked  neither  vitality  nor  energy, 
for  they  did  not  lack  liberty.  In  the  late  days  when  great  cities 
grew  up,  the  simple  township  system  had  to  be  abandoned  in 
part ;  as  the  colonies  expanded,  too,  they  gained  in  energy  and 
vitality  as  wholes,  and  their  component  parts,  the  towns,  fell 
by  degrees  to  a  place  of  less  exclusive  importance  in  colonial 
affairs  ;  but  this  basis  of  the  township  was  never  lost  and  is  to- 
day still  the  foundation  of  local  government  in  New  England. 

840.  Colonial  Organization.  —  As  the  towns  came  together 
into  the  groupings  which  constituted  the  later  colonies  other 
areas  of  government  of  course  came  into  use.  Townships 
were,  for  judicial  purposes,  combined  into  counties,  and  by 
various  other  means  of  organization  a  new  nexus  was  given  to 
the  several  parts  of  the  now  extended  state.  From  the  first 
the  colonists  had  their  "  general  courts,"  their  central  legislar 
tive  assemblies  representative  of  the  freemen.  To  these 
assemblies  went  delegates  from  the  several  towns  comprised 
in  the  colony.  As  the  colonies  grew,  their  growth  but 
strengthened  their  assemblies :  it  was  in  the  common  ruling 
function  of  these  that  the  union  of  the  several  parts  of  each 
colony  was  made  real  and  lasting. 


454       THE  GOVERNMEKT  OF  THE  UNITED  STATES. 

The  sheriffs  of  the  counties  of  colonial  Massachusetts  were  appointed 
by  the  Governor.  The  development  of  the  county  organization  brought 
into  existence,  too,  Justices  of  the  Peace  who  met  in  Quarter  Sessions, 
afterwards  called  "General  Sessions,"  and  who  were  the  general  county 
authority  quite  after  the  fashion  of  the  mother  country .1 

841.  The  Southern  Colonies. — To  this  picture  of  the 
political  institutions  of  colonial  New  England  political  and 
social  organization  in  the  Southern  colonies  offered  many 
broad  contrasts.  The  settlers  in  Virginia  were  not  religious 
refugees  :  they  had  come  out  for  a  separate  adventure  in  polit- 
ical, or  rather  in  social,  organization,  but  not  for  a  separate 
venture  in  religion ;  and  the  coast  they  happened  upon,  instead 
of  being  rugged  and  bleak,  was  low  and  fertile,  with  a  kindly 
climate,  deep  rivers,  broad  stretches  of  inviting  country,  and  a 
generous  readiness  to  yield  its  fruits  in  season.  They  had 
been  sent  out  by  a  Company  (the  "  Virginia  Company  "  it  was 
called)  in  England,  to  which  the  Virginia  territory  had  been 
granted  by  the  Crown,  and  they  had  no  thought  but  to  live 
under  the  governors  whom  the  Company  had  placed  over 
them.  They  founded  Jamestown  some  hundred  miles  above 
the  mouth  of  the  James  river ;  but  Jamestown  was  in  no  way 
like  the  New  England  towns,  and  it  soon  became  evident  that 
town  life  was  not  to  be  the  characteristic  life  of  the  colony. 
The  rich  soil  invited  to  agriculture,  the  numerous  rivers,  full 
and  deep,  stood  ready  to  serve  as  natural  highways,  and  as  the 
population  of  the  colony  increased  it  spread,  —  spread  far  and 
wide  along  the  courses  of  the  rivers. 

842.  Expansion  without  Separation.  —  Still  there  would 
appear  to  have  been  no  idea  of  organic  separation  in  this  pro- 
cess, as  there  was  so  often  in  the  spreadings  of  the  New  England 
colonists.  Great  plantations  indeed  grew  up  with  an  almost 
entirely  separate  life  of  their  own,  with  their  own  wharves  on 

1  See  Town  and  County  Government  in  the  English  Colonies  of  North 
America,  by  Edward  Channing,  Johns  Hopkins  University  Studies  in  His- 
torical and  Political  Science,  2d  Series,  pp.  40-42. 


THE5  GOVERNMENT  OF  THU  UNITED  STATES.  455 

the  river  fronts  and  their  own  direct  trade  with  the  outer 
world  by  vessels  which  came  and  went  between  them  and 
England,  or  between  them  and  the  trading  colonies  to  the 
north ;  but  all  this  took  place  without  any  idea  of  organic  po- 
litical separateness.  This  diffused  agricultural  population  thus 
living  its  own  life  on  the  great  rural  properties  which  steadily 
multiplied  in  all  directions  still  consciously  formed  a  single 
colony,  living  at  first  under  the  general  government  of  the 
Company  which  had  sent  out  the  first  settlers,  and  afterwards, 
Avhen  the  Company  had  been  deprived  of  its  charter  and  pos- 
sessions, under  the  authority  of  royal  governors.  Its  parts 
hung  loosely  together  indeed,  but  they  did  not  threaten  to  fall 
apart :  the  plan  was  expansion,  not  segregation. 

843.  Southern  Colonial  Society.  —  The  characteristics  of 
the  society  formed  under  such  circumstances  were  of  course 
very  marked.  Slaves  were  early  introduced  into  the  colony, 
and  served  well  to  aid  and  quicken  the  development  of  the 
plantation  system.  A  great  gap  speedily  showed  itself  between 
the  owners  of  estates  and  the  laboring  classes.  Where  slavery 
exists  manual  toil  must  be  considered  slavish  and  all  the  ideas 
on  which  aristocracy  are  founded  must  find  easy  and  sponta- 
neous rootage.  Great  contrasts  of  condition  soon  appeared, 
such  as  the  more  democratic  trading  communities  of  New  Eng- 
land were  not  to  know  until  the  rise  of  the  modern  industrial 
organization ;  and  the  governing  power  rested  of  course  with 
the  powerful,  the  propertied  classes. 

844.  Government  of  Colonial  Virginia.  —  The  government 
of  colonial  Virginia  bore,  in  all  its  broader  features,  much  the 
same  character  as  the  rural  government  of  England.  Organ- 
ization was  effected  through  a  machinery  of  wide  counties, 
instead  of  by  means  of  compacted  townships.  There  was  at 
the  head  of  each  county,  under  this  first  order  of  things,  a 
Lieutenant  whose  duties  corresponded  roughly  with  those  of 
the  Lords  Lieutenant  in  England.  The  other  important  ex- 
ecutive officer  of  the  county,  too,  in  Virginia  as  in  England, 


456       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


was  the  Sheriff.  The  Lieutenant  was  appointed  by  the  Gov- 
ernor, was  chief  of  the  military  (militia)  organization  of  the 
county,  and,  by  virtue  of  his  membership  in  the  Governor's 
Council,  exercised  certain  judicial  functions  in  the  county. 
The  Sheriff  also  was  appointed  by  the  Governor,  upon  the  nom- 
ination of  the  Justices  of  the  county.  His  duties  an  English 
sheriff  would  have  regarded  as  quite  normal.  And  added  to 
these  officers  there  was,  as  in  England,  a  "  commission  of  the 
peace,"  a  body  of  justices  or  commissioners  authorized  to  hold 
county  court  for  the  hearing  of  all  ordinary  cases  not  of  grave 
import ;  authorized  to  levy  the  county  taxes,  to  appoint  sur- 
veyors of  highways,  to  divide  the  county  into  precincts ;  em- 
powered to  act  as  the  general  administrative  authority  of  the 
county  in  the  management  of  all  matters  not  otherwise  as- 
signed. The  Episcopal  church  had  the  same  official  recog- 
nition in  Virginia  as  in  England  and  contributed  the  same 
machinery,  —  the  machinery  of  the  Vestry,  —  to  local  govern- 
ment. Even  the  division  of  the  'hundred'  was  recognized, 
so  close  was  the  outline  likeness  between  the  institutions  of  the 
mother  country  and  those  of  her  crude  child  in  the  west.  The 
system  was  undemocratic,  of  course,  as  was  its  model:  "the 
dominant  idea,"  as  Mr.  Ingle  says,  "  was  gradation  of  power 
from  the  Governor  doivnward,  not  upward  from  the  people."  ^ 
The  Justices,  like  the  other  officers  of  the  county,  were  ap- 
pointed by  the  Governor,  and  held  only  during  his  pleasure  :  the 
whole  system  rested  upon  a  rather  absolute  centralization.  But 
still  there  was  liberty.  There  was  strong  local  feeling  and 
individual  pride  to  counteract  the  subserviency  of  the  officers : 
those  officers  showed  a  more  or  less  self-respecting  independ- 
ence in  their  administration ;  and  at  least  the  spirit  of  English 
self-government  was  kept  alive. 

1  Local  Institutions  in  Virginia,  by  Edward  Ingle,  Johns  Hopkins  Uni- 
versity Studies  in  Historical  and  Political  Science,  3d  Series,  p.  97  (con- 
tinuous, p.  199). 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  457 

845.  Virginia's  Colonial  Assembly.  —  The  vital  centre  of 
the  political  life  of  the  colony  was  her  representative  assembly. 
So  early  as  1619,  but  twelve  years  after  the  foundation  of  the 
colony  (1607),  the  Virginia  Company,  then  still  in  control,  had 
called  together  in  the  colony,  through  its  governor,  an  assembly 
representing  the  plantations  then  existing,  which  were  in  this 
way  treated  as  independent  corporations  entitled  to  a  represen- 
tative voice  in  colonial  affairs.  Later  years  saw  the  Assembly 
developed  upon  the  basis  of  a  representation  by  towns,  hun- 
dreds, and  plantations :  and  even  after  the  governors  sent  out 
by  the  Company  had  been  supplanted  by  royal  governors  this 
representative  body,  this  House  of  Burgesses,  as  it  came  to  be 
styled,  continued  to  exist,  and  to  wax  strong  in  control.  The 
fii'st  Assembly,  that  of  1619,  had  sat  in  joint  session  with  the 
governor  and  his  council,  but  the  more  fully  developed  assem- 
bly of  later  times  sat  apart  as  a  distinct  and  independent  body. 
It  was  this  elective  representation  in  the  government  of  the 
colony  which  made  and  kept  Virginia  a  vital  political  unit, 
with  a  real  organic  life  and  feeling. 

846.  The  constitutions  of  the  other  southern  colonies 
corresponded  in  all  essential  features  with  the  constitution  of 
Virginia.  They,  too,  had  the  county  system  and  the  general 
representation  in  a  central  assembly,  combined  with  governors 
and  councils  appointed  by  the  Crown.  All  save  Maryland. 
Her  constitution  differed  from  the  others  mainly  in  this,  that 
in  place  of  the  king  stood  a  '  proprietor '  to  whom  the  fullest 
prerogatives  of  government  had  been  granted. 

847.  The  Middle  Colonies  had  a  mixed  population.  New 
York  had  been  New  Netherland,  and  the  Delaware  had  been 
first  settled  by  the  Swedes  and  then  conquered  by  the  Dutch. 
When  the  territory,  which  was  to  comprise  New  York,  New 
Jersey,  Delaware,  and  Pennsylvania,  fell  into  the  hands  of 
the  English  the  foreign  element  was  not  displaced  but  merely 
dominated ;  and  to  a  large  extent  it  kept  its  local  peculiarities 
of  institution.    For  the  rest,  the  English  settlers  of  the  region 


458       THE  GOVEENMENT  OF  THE  UNITED  STATES. 

followed  no  uniform  or  characteristic  method  of  organization. 
The  middle  colonies,  though  possessed  of  a  rich  soil,  had  also 
fine  seaports  which  invited  to  commerce ;  their  climate  was 
neither  so  harsh  as  that  of  Kew  England,  nor  so  mild  and 
beguiling  as  that  of  the  southern  colonies.  Their  people,  conse- 
quently, built  towns  and  traded,  like  the  people  of  New  Eng- 
land ;  but  also  spread  abroad  over  the  fertile  country  and  farmed, 
like  the  people  of  Virginia.  They  did  these  things,  however, 
without  developing  either  the  town  system  of  New  England  or 
the  plantation  system  of  Virginia.  Townships  they  had,  but 
counties  also ;  they  were  simple  and  democratic,  like  the  New 
Englanders,  and  yet  they  were  agricultural  also,  like  the  Vir- 
ginians :  in  occupation  and  political  organization,  as  well  as  in 
geographical  situation,  they  were  midway  between  their  neigh- 
bors to  the  north  and  south. 

848.  The  Charters:  Massachusetts.  —  The  political  rela- 
tions of  the  colonies  to  the  mother  country  during  the  various 
developments  of  which  I  have  spoken  were  as  various  as  the 
separate  histories  of  the  colonies.  The  three  New  England 
colonies,  Massachusetts,  Ehode  Island,  and  Connecticut,  pos- 
sessed charters  from  the  king  which  virtually  authorized  them 
to  conduct  their  own  governments  without  direct  interference 
on  the  part  of  the  Administration  at  home.  During  the  first 
years  of  English  settlement  on  the  American  coast  it  had  been 
the  practice  of  the  government  in  England  to  grant  territory 
on  the  new  continent  to  companies  like  the  Virginia  Company 
of  which  I  have  spoken,  —  grants  which  carried  with  them  the 
right  of  governing  the  new  settlements  subject  only  to  a  general 
supervision  on  the  part  of  the  home  authorities.  The  colony 
of  Massachusetts  Bay  was  established  under  such  an  arrange- 
ment :  a  Company,  to  which  special  privileges  of  settlement 
and  government  had  been  granted,  sent  out  colonists  who 
founded  Salem  and  Boston ;  but  the  history  of  this  Company 
was  very  different  from  the  history  of  the  Virginia  Com- 
pany.   The  Virginia  Company  tried  to  manage  their  colony 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  459 

from  London,  where  the  members  of  the  Company,  who  were 
active  liberals  and  therefore  not  very  active  courtiers,  pres- 
ently got  into  trouble  with  the  government  and  had  both  their 
charter  and  their  colony  taken  away  from  them.  The  Massar 
chusetts  Company,  on  the  other  hand,  itself  came  to  America, 
and,  almost  unobserved  by  the  j^owers  in  London,  erected  some- 
thing very  like  a  separate  state  on  the  new  continent.  Its 
charter  was  received  in  1629 ;  in  1630  it  emigrated,  governor, 
directors,  charter,  and  all,  to  America,  bringing  a  numerous 
body  of  settlers,  founded  Boston  and  Cambridge,  and  put 
quietly  into  operation  the  complete  machinery  of  government 
which  it  had  brought  with  it.  It  created  not  a  little  stir  in 
official  circles  in  England  when  it  was  discovered  that  the 
Company  which  had  been  given  rights  of  settlement  on  the 
New  England  coast  had  left  the  country  and  was  building  a 
flourishing  semi-independent  state  on  its  territories  ;  but  small 
colonies  at  a  great  distance  could  not  long  retain  the  atten- 
tion of  busy  politicians  in  London,  and  nothing  was  done  then 
to  destroy  the  bold  arrangement.  Fatal  collision  with  the  home 
government  could  not,  however,  it  turned  out,  be  permanently, 
or  even  long  avoided  by  the  aggressive,  self-willed  rulers  of 
the  Massachusetts  Company.  Many  of  the  laws  which  they 
passed  did  not  please  the  Crown,  —  particularly  those  which 
set  up  an  exclusive  religion  and  tolerated  no  other ;  they  would 
not  change  their  laws  at  the  Crown's  bidding ;  and,  though  the 
evil  day  was  postponed,  it  came  at  last.  In  1684  the  contest 
between  Crown  and  colony  came  to  a  head,  and  the  charter  of 
the  Massachusetts  Company  was  annulled.  Before  a  change 
could  be  effected  in  the  government,  indeed,  the  king,  Charles 
IL,  died,  and  during  the  troublous  reign  of  James  II.  the  colo- 
nists quietly  resumed  their  charter  privileges  ;  but  in  1692  the 
government  of  William  and  Mary  was  ready  to  deal  with  them, 
and  a  new  form  of  colonial  organization  was  forced  upon  them. 
They  were  compelled  to  take  a  governor  from  the  king ;  the 
royal  governor  appointed  the  judicial  officers  of  the  colony  an  1 


460       THE  GOYERNIMENT  OF  THE  UNITED  STATES. 

controlled  its  military  forces  ;  and,  although,  the  colonists  re- 
tained their  assembly  and  through  that  assembly  chose  the 
governor's  Council,  the  old  charter  privileges  were  perma- 
nently lost. 

849.  The  Connecticut  Charter.  —  Ehode  Island  and  Con- 
necticut were  small  and  more  fortunate.  The  town  of  Say- 
brook,  at  the  mouth  of  the  Connecticut  river,  had  been  founded 
under  a  charter  granted  to  two  English  noblemen,  and  consisted, 
therefore,  of  immigrants  direct  from  England ;  but  Saybrook 
did  not  grow  rapidly  and  proved  a  comparative  failure.  The 
successful  and  dominant  settlement  on  the  Connecticut  was 
that  which  had  been  founded  higher  up  the  river  at  Hartford 
by  men  from  Massachusetts  who  had  neither  charter  nor  any 
other  legal  rights,  but  who  had  simply  come,  settled,  and  made 
a  written  constitution  for  themselves.  New  Haven,  westward 
of  the  river  on  the  shore  of  the  sound,  had  been  established 
by  a  band  of  English  immigrants  equally  without  charter 
rights,  but  equally  ready  and  able  to  construct  a  frame  of  gov- 
ernment for  themselves.  Some  thirty  years  after  their  settle- 
ment, the  leaders  of  the  ^Connecticut  colony,'  up  the  river, 
which  meantime  had  become  an  extended  cluster  of  towns, 
decided  that  it  was  time  to  obtain  a  charter.  Accordingly 
they  sent  their  governor,  Winthrop,  to  England  to  procure 
one.  He  was  entirely  successful,  much  more  successful  than 
was  pleasant  to  the  settlers  of  the  New  Haven  district ;  for  he 
had  obtained  a  grant  which  included  their  lands  and  colony 
and  which  thus  forced  them  to  become  a  part  of  '  Connecticut.' 
Saybrook  had  already  been  absorbed.  The  charter  gave  the 
colonists  substantially  the  same  rights  of  self-government  that 
they  had  had  under  their  own  written  constitution,  adopted 
upon  their  first  settlement ;  it  was,  in  other  words,  just  such 
a  charter  as  Massachusetts  then  enjoyed.  And,  unlike  Massa- 
chusetts, Connecticut  kept  her  charter,  kept  it  not  only  through 
colonial  times  to  the  Eevolution,  but  made  it  at  the  Revolution 
her  state  constitution,  and  was  content  to  live  under  it  until 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  461 

1818.  Her  shrewdness,  her  arts  of  timely  concession,  and  her 
inoffensive  size  enabled  her  to  turn  away  from  herself  each 
successive  danger  of  forfeiture. 

850.  Rhod:  Island^s  Charter.  —  Rhode  Island  was  similarly 
protected  by  fortune  and  sagacious  management.  Roger  Wil- 
liams, the  energetic  leader  of  settlement  in  that  region,  obtained 
a  charter  from  Parliament  in  1644,  which  was  confirmed  in 
1654,  and  replaced  by  a  new  charter,  from  Charles  II.,  in  1663, 
the  year  after  Connecticut  obtained  its  legal  privileges  through 
the  instrumentality  of  Winthrop.  As  ISiew  Haven  and  Con- 
necticut were  joined  by  Winthrop's  charter,  so  were  the  towns 
of  the  Rhode  Island  country  united  by  the  charters  obtained 
by  Williams,  under  the  style  'Rhode  Island  and  Providence 
Plantations,'  —  a  title  which  is  still  the  full  official  name  of 
the  state.  The  charter  of  '63  was  retained  b}'  the  people  of 
Rhode  Island  even  longer  than  the  people  of  Connecticut  re- 
tained theirs.    It  was  not  radically  changed  until  1842. 

851.  Proprietary  Governments.  —  The  governments  of 
almost  all  the  other  colonies  were  at  first  '  proprietary ' ; 
those  of  Maryland,  Pennsylvania,  and  Delaware  remained  pro- 
prietary until  the  Revolution.  Maryland  was  granted  to  the 
Calverts,  Lords  Baltimore ;  Pennsylvania  and  Delaware  were 
both  included  in  the  grant  to  William  Penn ;  New  York  was 
bestowed  upon  James,  Duke  of  York,  upon  whose  ascension  of 
the  throne,  as  James  II.,  it  became  an  immediate  province  of 
the  Crown ;  New  Jersey,  originally  a  part  of  New  York,  was 
first  bestowed  by  the  Duke  of  York  on  Lord  John  Berkeley 
and  Sir  John  Cartaret,  was  afterwards  divided,  then  sold  in 
part,  and  finally  surrendered  to  the  Crown  (1702)  ;  the  Caro- 
linas  and  Georgia  in  the  same  way,  given  at  first  to  propri- 
etors, passed  very  soon  into  the  hands  of  the  royal  govern- 
ment. New  Hampshire,  after  several  attempts  to  unite  with 
Massachusetts,  fell  quietly  into  the  status  of  a  royal  colony, 
without  having  had  either  a  charter  or  a  proprietary  stage 
of  existence. 


462       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

852.  Government  under  proprietors  meant  simply  govern- 
ment by  governors  and  councils  appointed  by  the  proprietors, 
witli  in  all  cases  a  full  right  on  the  part  of  the  people  to  con- 
trol the  government  through  representative  assemblies.  The 
private  proprietors,  like  the  great  public  proprietor,  the  Crown, 
granted  charters  to  their  colonies.  The  charter  which  Penn 
bestowed  upon  Pennsylvania  is  distinguished  as  one  of  the 
best-conceived  and  most  liberal  charters  of  the  time;  and 
under  it  his  colony  certainly  enjoyed  as  good  government  as 
most  of  the  colonies  could  secure. 

853.  Direct  Government  by  the  Crown,  which  came  in  turn 
to  every  colony  except  Rhode  Island,  Connecticut,  Maryland, 
Pennsylvania,  and  Delaware,  involved  the  appointment  of 
governors  by  the  Crown,  and  also,  everywhere  except  in  Mas- 
sachusetts, the  appointment  of  the  governor's  council.  It  gen- 
erally involved  also  the  dependence  of  the  colonial  judiciary, 
and  in  general  of  the  whole  administrative  machinery  of  gov- 
ernment, upon  the  royal  will;  but  it,  nevertheless,  did  not 
exclude  the  colonists  from  substantial  powers  of  self-govern- 
ment. Everywhere  legislators  disciplined  governors  with  the 
effective  whip  of  the  money  power,  and  everywhere  the  people 
grew  accustomed  to  esteem  the  management  of  their  own  affairs, 
especially  the  control  of  their  own  taxes,  matter-of-course  privi- 
leges, quite  as  inalienable  rights  of  Englishmen  in  America  as 
of  Englishmen  in  England. 

854.  Development  of  the  Assemblies.  —  It  was,  indeed,  as 
a  matter  of  course  rather  than  as  a  matter  of  right  that  the 
powers  of  the  colonial  assemblies  waxed  greater  and  greater 
from  year  to  year.  Parliament  would  have  been  wise  to  con- 
tinue the  policy  of  neglect  which  had  been  the  opportunity  of 
the  colonies  in  the  development  of  their  constitutional  liber- 
ties. Left  to  themselves,  they  quickly  showed  what  race  they 
were  of. 

As  Burke  said,  in  their  justification,  they  "  had  formed  within  them- 
selves, either  by  royal  instruction  or  royal  charter,  assemblies  so  ex- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  463 


ceedingly  resembling  a  parliament,  in  all  their  forms,  functions,  and 
powers,  that  it  was  impossible  they  should  not  imbibe  some  opinion  of 
a  similar  authority. 

"  At  the  first  designation  of  these  assemblies,  they  were  probably 
not  intended  for  anything  more  (nor  perhaps  did  they  think  themselves 
much  higher)  than  the  municipal  corporations  within  this  island,  to 
which  some  at  present  love  to  compare  them.  But  nothing  in  progres- 
sion can  rest  on  its  original  plan.  .  .  .  Therefore,  as  the  colonies  pros- 
pered and  increased  to  a  numerous  and  mighty  people,  spreading  over 
a  very  great  tract  of  the  globe,  it  was  natural  that  they  should  attribute 
to  assemblies  so  respectable  in  their  formal  constitution  some  part  of 
the  dignity  of  the  great  nations  which  they  represented.  No  longer 
tied  to  by-laws,  these  assemblies  made  acts  of  all  sorts  and  in  all  cases 
whatsoever.  They  levied  money,  not  for  parochial  purposes,  but  upon 
regular  grants  to  the  crown,  following  all  the  rules  and  principles  of  a 
parliament,  to  which  they  approached  every  day  more  and  more  nearly. 
.  .  .  Things  could  not  be  otherwise ;  and  English  colonies  must  be  had 
on  these  terms,  or  not  had  at  all.  In  the  meantime  neither  party  felt 
any  inconvenience  from  this  double  legislature,^  to  which  they  had  been 
formed  by  imperceptible  habits,  and  old  custom,  the  great  support  of 
all  the  governments  in  the  world.  Though  these  two  legislatures  were 
sometimes  found  perhaps  performing  the  very  same  functions,  they  did 
not  very  grossly  or  systematically  clash.  ...  A  regular  revenue,  by  the 
authority  of  Parliament,  for  the  support  of  civil  and  military  establish- 
ments, seems  not  to  have  been  thought  of  until  the  colonies  were  too 
proud  to  submit,  too  strong  to  be  forced,  too  enlightened  not  to  see  all 
the  consequences  which  must  arise  from  such  a  system." ^ 

855.  In  such  assertions  of  a  right  of  parliamentary  self-gov- 
ernment it  might  be  expected  that  the  charter  colonies  would 
be  most  forward ;  but,  as  a  matter  of  fact,  such  was  not  the 
case.  Massachusetts  was  ever,  indeed,  very  stubbornly  and 
heroically  attached  to  her  liberties,  but  the  royal  colony  of 
Virginia  was  not  a  whit  behind  her.  The  assemblies  of  the 
royal  colonies,  no  less  than  those  of  the  charter  governments, 
early,  and  as  if  by  an  instinct  and  habit  common  to  the  race,  de- 

1  The  legislature  of  England,  i.e.,  and  a  colonial  legislature. 

2  "Letter  to  the  Sheriffs  of  Bristol,"  Works  (ed.  Boston,  1880),  Vol.  11., 
pp.  232,  233. 


464       THE  GOVERNIklENT  OF  THE  UNITED  STATES. 

veloped  a  consciousness  and  practice  of  local  sovereignty,  which 
comported  well  enough,  indeed,  with  perfect  loyalty,  which 
was  long-suffering  as  towards  Navigation  Acts  and  all  inter- 
ferences by  the  mother  country  with  the  external  relations  of 
the  colonies,  their  place  in  the  politics  and  commerce  of  the 
outside  world,  but  which  was  from  the  first  prompt  to  resent 
and  resist  all  dictation  as  to  the  strictly  interior  affairs  of  the 
settlements.  And  the  same  was  true  of  the  proprietary  colo- 
nies, also:  Maryland  assumed  the  same  privileges  that  Vir- 
ginia insisted  upon  enjoying,  and  even  Pennsylvania,  with  its 
population  compounded  of  English,  Dutch,  and  Swedes,  mani- 
fested not  a  little  of  the  same  spirit  of  independent  self- 
direction. 

856.  Development  of  Constitutional  Liberty  in  the  Col- 
onies.—  There  was,  therefore,  a  comparatively  uniform  de- 
velopment of  constitutional  liberty  throughout  the  colonies. 
Everywhere  the  same  general  causes  were  operative.  The  set- 
tlement and  development  of  a  new  country  gave  to  the  elective 
governing  bodies  of  the  colonies  a  wide  and  various  duty  of 
legislative  regulation;  the  newness  of  the  country  created 
everywhere  substantially  the  same  new  conditions  of  social  rela- 
tionship ;  everywhere,  and  more  and  more  as  the  years  went  on, 
there  was  a  very  general  participation  in  communal  and  colonial 
affairs  by  the  mass  of  the  people  most  interested:  democratic 
institutions  brought  in  their  train  equality  of  law  and  a  wide- 
spread consciousness  of  community  of  interest.  Each  colony 
grew  the  while  more  and  more  vividly  conscious  of  its  separate 
political  personality  in  its  relations  with  the  other  colonies  and 
with  the  ruling  powers  in  England. 

857.  Political  Sympathy  of  the  Colonies.  —  The  substan- 
tial identity  of  the  lines  of  institutional  development  in  the 
several  colonies  appears  in  nothing  more  clearly  or  conclu- 
sively than  in  their  close  and  spontaneous  alliance  against  Eng- 
land at  the  Revolution.  Despite  very  considerable  outward 
^fferences  of  social  condition  and  many  apparent  divergencies 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  465 

of  interest  as  between  colony  and  colony,  they  one  and  all 
wanted  the  same  revolution:  almost  without  hesitation  they  ran 
together  to  co-operate  by  the  same  means  for  the  same  ends ; 
they  did  not  so  much  make  a  common  cause  as  have  a  common 
cause  from  the  first.  The  real  concrete  case  of  revolution,  so 
to  say,  was  made  up  between  England  and  Massachusetts :  to 
the  politicians  in  the  mother  country  it  seemed  possible  to  di- 
vide the  colonies  on  grounds  of  self-interest :  apparently  colo- 
nies so  utterly  different  in  every  outward  aspect,  so  strongly 
contrasted  in  actual  economic  condition  as  Massachusetts  and 
Virginia,  could  easily  be  played  off  against  one  another.  But 
we  now  know  how  little  foundation  of  fact  such  a  view  had. 
Boston's  trade  was  offered  to  Salem,  her  commercial  rival,  as  a 
bait  to  catch  Salem's  acquiescence  in  the  iniquitous  Boston 
Port  Bill  which  shut  Boston  off  from  all  trade ;  but  Salem 
would  not  have  it :  what  was  to  prevent  similar  treatment  of 
herself  in  the  future  ?  More  striking  still,  distant  Virginia 
sounded  the  call  to  revolution  in  behalf  of  Massachusetts  :  the 
contest  was  political,  she  clearly  perceived,  not  economical,  — 
a  contest  of  principle,  not  a  contest  for  any  temporary  interest 
or  momentary  advantage ;  from  the  point  of  view  of  politics 
Massachusetts'  quarrel  was  Virginia's  also.  Virginia  spoke  at 
once,  therefore,  and  as  a  leader,  for  combination,  for  a  joint 
resistance  to  the  aggressions  of  the  home  government,  and  at 
length  for  independence  and  a  perpetual  union  between  the 
colonies.  For  the  shortest  possible  time  did  the  struggle  re- 
main local ;  immediately  it  became  'continental.' 

858.  American  as  compared  with  English  Constitutional 
Development.  —  There  was  in  this  development  of  self-govern- 
ment in  America  a  certain  very  close  resemblance  to  the  devel- 
opment of  self-government  in  England ;  but  there  were  also 
other  points  of  very  strong  and  obvious  contrast  betAveen  the 
institutional  histories  of  the  two  countries.  Both  in  England 
and  America  the  process  of  institutional  growth  was  in  the  same 
direction :  it  began  with  small,  hardy,  deep-rooted  local  insti- 


466       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

tutions,  with  small  self-directing  communities,  and  widened 
from  these  to  national  institutions  which  bound  the  constituent 
communities  together  in  a  strong  and  lasting  central  union. 
England  began  with  her  village  communities  and  her  judicial 
*  hundreds/  with  the  primitive  communal  institutions  of  the 
Teutonic  folk ;  these  were  first  gathered  to  a  head  in  the  petty 
kingdoms  of  the  days  of  the  Saxon  Heptarchy  ;  another  step, 
and  these  one-time  petty  kingdoms  were  merely  the  counties 
of  a  wider  union,  and  England  was  ready  for  the  amalgamation 
of  the  Norman  rule,  was  ready  for  the  growth  of  her  parlia- 
ments and  her  nationality.  In  like  manner,  the  United  States 
began  with  isolated  settlements  upon  a  long  coast,  settlements 
separate,  self-contained,  self-regulative ;  these  in  time  merged 
in  numerous  petty  colonial  states ;  and  finally  these  colonial 
states  fitted  themselves  together  into  a  national  union. 

859.  Process  of  Growth  in  America  Federation,  in  England 
Consolidation.  —  But  the  means  of  integration  were  in  the  two 
cases  quite  diverse.  American  integration  has  been  federal ; 
English,  absorptive,  incorporative.  The  earlier  stages  of  fed- 
eration did  not  appear  in  the  southern  colonies  ;  because  there 
the  unity  of  the  first  settlement  was  generally  not  broken ;  the 
Virginia  of  the  Revolution  was  but  an  expansion  of  the  James- 
town settlement ;  growth  by  agricultural  development  was  not 
disintegrating  like  growth  by  town  establishment.  But  in 
New  England  the  process  is  obviously  federative  from  the  first, 
finding  its  most  perfect  type,  probably,  in  Rhode  Island,  whose 
town  atoms  drew  so  slowly  and  reluctantly  together  and  so  long 
stoutly  resisted  the  idea  that  they  had  in  any  sense  been 
absorbed  or  subordinated  under  the  operation  of  the  charters 
of  '  Rhode  Island  and  Providence  Plantations.'  What  was  at 
first  mere  confederation  between  these  smallest  units,  however, 
by- degrees  became  virtual  coalescence,  and  the  absorbed  towns 
finally  formed  but  subordinate  parts  in  the  new  and  larger 
colonial  units  which  drew  together  in  the  Continental  Con- 
gresses.   Between  these  larger  units,  these  full-grown  colonial 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  467 

states,  of  course,  union  was  from  the  first  distinctly  federative, 
matter  of  concession  and  contract.  They  were  united  in  en- 
tirely voluntary  association,  as  of  course  the  Saxon  kingdoms 
were  not. 

860.  Conscious  Development  of  Institutions  in  America. 

—  Throughout  their  development,  therefore,  the  colonies  pre- 
sented, in  still  another  equally  important  respect,  a  marked 
contrast  to  English  development  in  this,  that  the  formulation 
of  their  institutions  was  conscious  and  deliberate.  The  royal 
colonies,  like  the  proprietary  and  the  charter  colonies,  exercised 
their  rights  of  self-government  under  written  grants  of  privi- 
lege from  the  Crown :  their  institutions  grew  within  the  area 
of  written  constituent  law;  from  the  first  they  had  definite 
written  '  constitutions '  wherein  the  general  fabric  of  their  gov- 
ernments was  outlined.  Constitution  by  written  law,  there- 
fore, became  very  early  one  of  the  matter-of-course  habits  of 
colonial  thought  and  action.  When  they  cast  off  their  alle- 
giance to  Great  Britain  their  self-constitution,  as  independent 
political  bodies,  took  the  shape  of  a  recasting  of  their  colonial 
constitutions  simply ;  Rhode  Island  and  Connecticut,  as  we 
have  seen,  did  not  even  find  it  necessary  to  change  their  char- 
ters in  any  important  particular  :  they  already  chose  their  own 
governors  and  officials  as  well  as  made  their  own  laws.  The 
other  colonies,  with  little  more  trouble,  found  adequate  means 
of  self-government  in  changes  w^hich  involved  hardly  more 
than  substituting  the  authority  of  the  people  for  the  authority 
of  the  English  Crown.  But  the  charter,  the  written  constit- 
uent law,,  was  retained  as  of  course :  the  new  governments  had 
their  charters  which  emanated  from  the  people,  as  the  old  gov- 
ernments had  had  theirs  given  by  the  king.  Popular  conven- 
tions took  the  place  of  the  Privy  Council.  The  colonists  were 
not  inventing  written  constitutions  ;  they  were  simply  contin- 
uing their  former  habitual  constitutional  life. 

861.  English  Law  and  Precedent.  — Whatever  the  form  of 
colonial  institutions,  however,  their  substance  and  content  were 


468       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

thoroughly  English.  In  a  sense,  indeed,  even  the  forms  of 
colonial  constituent  law  may  be  said  to  have  been  English, 
since  it  was  English  practice  which  originated  the  idea  and 
liabit  of  giving  written  grants  of  privilege  to  distant  colonies. 
The  colonial  law  of  Canada  and  Australia  stands  to-day  in  much 
the  same  relation  to  the  law  of  the  mother  country  that  the  law 
of  the  American  colonies  bore  to  the  law  which  created  them 
(sec.  826).  Within  the  constitutions  of  the  colonial  and  rev- 
olutionary time,  at  any  rate,  English  law  and  precedent  were 
closely  followed.  The  English  common  law  has  gone  with  Eng- 
lishmen to  the  ends  of  the  world :  the  English  communities  in 
America  were  but  projected  parts  of  the  greater  English  commu- 
nity at  home ;  the  laws  of  private  and  personal  relation  which 
obtained  in  England  were  recognized  and  administered  also  in 
the  colonies ;  and  when,  at  the  time  of  the  Revolution,  the 
colonists  developed  out  of  their  charters  the  constitutions 
under  which  they  were  to  live  as  independent  commonwealths 
their  first  care  was  to  adopt  this  common  law  under  which 
they  had  always  acted.  Important  modifications  were  made 
indeed  in  the  law  thus  adopted.  It  was  purged  of  all  class 
privilege,  of  all  church  prerogative,  of  all  things  incompatible 
with  the  simple  democratic  society  of  the  new  world ;  but  no 
real  break  was  made  with  the  principles  of  English  legal 
precedent  and  practice. 

862.  Quite  as  naturally  and  quite  as  completely  was  English 
practice  adhered  to  in  the  public  law  of  the  colonies  and  of  the 
independent  commonwealths  into  which  they  grew.  The  rela- 
tions of  the  colonial  legislatures  with  the  colonial  governors 
were  just  the  relations  of  King  and  Parliament  reproduced  on 
a  small  scale,  but  with  scarcely  less  earnestness  and  spirit.  In 
all  re,spects,  except  that  of  the  erection  of  a  responsible  min- 
istry representing  and  shielding  the  Executive,  the  relations  of 
the  people  to  their  governments  remind  of  English  precedent. 
The  powers  of  the  executive  were,  in  small,  the  powers  of  the 
Crown.    The  courts  were  constituted  as  the  English  courts 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  469 

were,  and  followed  the  same  rules  of  procedure.  Of  course 
the  English  in  America,  being  men  of  the  same  practical  politi- 
cal race  as  Englishmen  in  England,  struck  out  not  a  few  lines 
of  development  of  their  own  in  suiting  their  institutions  to 
the  daily  needs  of  a  new  civilization  and  to  novel  conditions  of 
social  organization ;  American  politics  were  not  long  in  acquir- 
ing in  many  respects  a  character  peculiarly  their  own.  But 
the  manner  of  development  was  English  throughout :  there  was 
nowhere  any  turning  of  sharp  corners  :  there  was  nowhere  any 
break  of  continuity :  to  the  present  day  our  institutions  rest 
upon  foundations  as  old  as  the  Teutonic  i)eoples. 

863.  Union :  Preliminary  Steps.  —  How  much  of  political 
precedent  that  was  their  own  the  colonists  had  developed  ap- 
peared most  distinctly  when  they  came  to  put  the  timbers  of 
their  Union  together  in  the  days  succeeding  the  Ee volution. 
The  colonies  cannot  be  said  to  have  framed  any  federative  con- 
stituent law  until  1777,  when  the  Articles  of  Confederation 
were  drawn  up.  Before  that  time  they  had  co-operated  with- 
out any  determinate  law  of  co-operation,  acting  rather  uj^on  the 
suggestions  of  international  procedure  than  upon  any  clear 
recognition  of  corporate  combination.  Preparations  for  union 
there  had  been,  and  signs  of  its  coming ;  but  no  more.  Eor  a 
period  of  forty  years  following  the  year  1643  the  Xew  England 
colonies  had  held  together  in  loose  confederation  against  the 
Indians  ;  in  1754  colonial  delegates  who  had  met  at  AlbJiny  for 
conference  with  representatives  of  the  Six  Nations  discussed 
a  premature  plan  of  union ;  in  1765  delegates  from  nine  of  the 
colonies  met  at  Xew  York  and  uttered  in  behalf  of  all  English 
Americans  that  protest  against  taxation  by  Parliament  which 
gave  the  key-note  to  all  the  subsequent  thought  of  the  revolu- 
tionary movement ;  and  in  1774  sat  the  first  of  the  series  of 
^  Continental  Congresses '  with  which  began  American  union. 
But  in  none  of  these  steps  was  there  any  creation  of  organic 
union :  that  was  to  be  the  result  of  slow  processes,  and  was  to 
be  effected  only  by  the  formulation  of  an  entirely  new  body  of 
law. 


470       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


804.  Separateness  of  the  Colonial  Governments.  —  It  is  very 
important,  if  a  just  view  is  to  be  formed  of  the  processes  by  which  the 
Union  was  constructed,  to  realize  the  complete  separateness  of  the  gov- 
ernments of  the  colonies.  They  all  held  substantially  the  same  general 
relation  to  the  English  authorities  ;  they  had  a  common  duty  as  towards 
the  distant  country  from  which  they  had  all  come  out ;  but  they  were  not 
connected  by  any  bonds  of  government  on  this  side  the  sea.  Each  of 
the  colonies  had  its  own  separate  executive  officials,  legislature,  and 
courts,  which  had  no  connection  whatever  with  the  officers,  legislatures, 
and  courts  of  any  other  colony.  Their  co-operation  from  time  to  tim.e 
in  meeting  dangers  which  threatened  them  all  alike  was  natural  and 
spontaneous,  but  it  was  intermittent;  it  rested  upon  mere  temporary 
necessity  and  had  no  basis  of  interior  organic  law.  The  colonists  had 
many  grounds  of  sympathy.  Besides  possessing  the  same  blood  and  the 
same  language,  they  entertained  the  same  ideas  about  political  justice ; 
their  dangers,  whether  proceeding  from  aggressions  on  the  part  of  the 
French  and  Indians  which  threatened  their  lives,  or  from  aggressions 
by  Parliament  which  threatened  their  liberties,  were  common  dangers  : 
they  were  one  and  all  equally  interested  in  the  successful  development 
and  liberal  government  of  the  new  country  with  which  they  had 
identified  themselves.  But  the  motive  of  their  endeavors  was  always 
the  preservation  of  their  internal  and  separate  self-government ;  their 
liberties  were  historically  coincident  with  their  organization  and  rights 
as  separate  governments.  It  was,  therefore,  only  by  the  slow  processes 
of  a  hard  experience  of  the  fatal  consequences  of  any  other  course  that 
the  colonies  were  brought  to  subordinate  themselves  to  a  central  au- 
thority which  could  go  further  than  mere  conference  and  command  them. 
They  saw  from  the  first  the  necessity  for  co-operation,  but  they  did  not 
see  from  the  first  the  absolute  necessity  for  union.  Very  slowly,  con- 
sidering the  swift  influences  of  revolution  amidst  which  they  worked,  and 
very  reluctantly,  considering  the  evident  dangers  of  separation  which 
daily  looked  them  in  the  face,  did  they  construct  the  union  which  was 
to  deprive  them  of  the  fulness  of  their  loved  independence. 

865.  The  Confederation.  —  It  was  not  until  1781  that  a 
foundation  of  distinct  written  law  was  put  beneath  the  prac- 
tice of  union;  it  was  not  till  1789  that  the  law  of  the  union 
was  made  organic.  In  1781  the  Articles  of  Confederation  were 
finally  adopted  which  had  been  proposed  by  the  Continental 
Congress  of  1777 :  but  these  Articles  gave  no  real  integration 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  471 


to  the  constituent  states :  they  Avere  from  the  first  a  rope  of 
sand  which  could  bind  no  one.  They  did  little  more  than 
legitimate  the  Continental  Congress.  Under  them  the  powers 
of  the  Confederation  were  to  be  exercised  by  its  Congress ;  its 
only  executive  or  judicial  organs  were  to  be  mere  committees 
or  agencies  of  the  Congress ;  and  it  was  in  fact  to  have  no  real 
use  for  executive  parts,  for  it  was  to  have  no  executive  rights. 
Its  function  was  to  be  advice,  not  command.  It  hung  upon 
the  will  of  the  states,  being  permitted  no  effective  will  of  its 
own.  The  Articles  were  scarcely  more  than  an  international 
convention. 

866.  The  Articles  of  Confederation  formally  vested  the  exercise 
of  federal  functions  in  a  Congress  just  such  as  the  Continental  Con- 
gresses had  been,  —  a  Congress,  that  is,  consisting  of  delegates  from  the 
several  states,  and  in  whose  decisions  the  states  were  to  have  an  abso- 
lutely equal  voice.  No  state,  it  was  arranged,  should  have  her  vote  in 
the  Congress  unless  represented  by  at  least  two  delegates,  and  no  state, 
on  the  other  hand,  was  to  be  entitled  to  send  more  than  seven  delegates  ; 
whether  she  sent  two  or  seven,  however,  her  vote  was  to  be  single  vote, 
upon  which  her  delegates  were  to  agree.  The  government  thus  con- 
stituted was  officially  known  as  "The  United  States  in  Congress  as- 
sembled." For  the  exercise  of  representative  functions  it  was  very 
liberally  and  completely  equipped.  To  it  the  independence  of  the 
several  states  in  dealing  with  foreign  powers  was  entirely  subordinated. 
It  alone  was  to  conduct  all  international  correspondence  and  sanction 
all  international  agreements ;  it  was  to  control  the  army  and  navy  of 
the  Confederation ;  it  was  to  preside  over  federal  finances,  doing  all 
borrowing  and  all  spending  that  might  be  necessary  for  the  purposes  of 
the  common  government ;  it  was  to  determine  the  value  of  current  coin 
and  the  standards  of  weights  and  measures;  it  was  to  be  arbitrator 
in  disputes  between  the  states ;  in  brief,  it  was  to  be  the  single  and 
dominant  authority  for  all  the  graver  common  interests  of  the  con- 
stituent states  :  its  representative  position  was  eminent  and  complete. 

867.  Weakness  of  the  Confederation. — But  it  was  given  abso- 
lutely no  executive  power,  and  was  therefore  helpless  and  contemptible. 
It  could  take  no  important  resolution  without  the  difficult  concurrence 
of  nine  states,  —  a  concurrence  made  all  the  more  difficult  by  the  fact 
that  the  removal  of  the  pressure  of  the  war  with  England  very  greatly 
abated  the  interest  of  the  states  in  the  functions  of  the  central  Con- 


472       THE  GOVERIOIENT  OF  THE  UNITED  STATES. 


gress,  and  led  some  of  them  again  and  again  to  fail  to  send  delegates  to 
its  sessions;  its  chief  executive  agency  was  a  committee  of  its  members 
representing  all  the  states  (hence  called  the  "Committee  of  States") 
and  bound  by  the  same  hard  rule  of  obtaining  the  concurrence  of  nine 
of  its  thirteen  members  to  every  important  executive  step ;  and,  above 
all,  its  only  power  to  govern  the  states  was  a  power  to  advise  them.  It 
could  ask  the  states  for  money,  but  it  could  not  compel  them  to  give 
it ;  it  could  ask  them  for  troops,  but  could  not  force  them  to  heed  the 
requisition ;  it  could  make  treaties,  but  must  trust  the  states  to  fulfil 
them ;  it  could  contract  debts,  but  must  rely  upon  the  states  to  pay 
them.  It  was  a  body  richly  enough  endowed  with  prerogatives,  but 
not  at  all  endowed  with  powers.  "  The  United  States  in  Congress 
assembled  "  formed  a  mere  consultative  and  advisory  board. 

868.  Need  of  a  Better  Union.  —  It  was  the  fatal  executive 
impotency  of  the  Confederation  which  led  to  the  formation  of 
the  present  stronger  and  more  complete  government.  The  old 
Continental  Congresses  had  sufficed,  after  a  fashion,  to  keep 
the  colonies  together  so  long  as  the  pressure  of  the  war  con- 
tinued ;  throughout  that  war  there  had  been,  despite  much  in- 
difference now  and  again  on  the  part  of  some  of  the  colonies 
to  their  duty,  and  of  not  a  little  positive  dereliction  of  plain 
obligations,  a  wonderful  degree  of  energy  and  unity  of  action 
among  the  confederated  colonists.  But  when  the  pressure  of 
the  war  was  removed  there  was  an  ominous  access  of  indiffer- 
ence, an  ill-boding  decrease  of  respect  for  plighted  faith  between 
the  states.  Signs  fast  multiplied  both  of  the  individual  weak- 
ness of  the  states  and  of  the  growth  of  threatening  jealousies 
between  them.  A  war  of  tariffs  began  between  neighbor  states 
on  the  seaboard,  notably  between  New  York  and  Xew  Jersey 
and  between  Virginia  and  Maryland.  In  Massachusetts  there 
flared  out,  by  reason  of  the  poverty  engendered  by  the  war,  a 
rebellion  of  debtors  under  Daniel  Shays  which  it  was  for  a  mo- 
ment feared  the  state  authorities  might  find  it  hard  to  cope 
with.  It  speedily  became  evident  that,  both  for  the  sake  of  in- 
ternal order  and  of  inter-state  peace  and  goodwill,  a  real  central 
government  was  needed.   Central  consultation  would  not  suffice ; 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  473 

there  must  be  central  governraent.  The  Confederation,  there- 
fore, was  no  real  advance  upon  the  old  Continental  Congresses. 
Before  a  single  decade  had  passed  over  the  new  government 
with  its  fair-spoken  Articles  a  new  union  had  been  erected  and 
the  real  history  of  the  United  States  begun. 

869.  The  Constitution:  Colonial  Precedents.  —  The  pres- 
ent Constitution  erects  a  very  different  government :  it  is  the 
charter  of  a  federal  state,  which  has  a  commanding  law  and  an 
independent  power  of  its  own,  whose  Constitution  and  law  are 
the  supreme  law  of  the  land.  The  Convention  which  framed 
the  new  constitution  met  in  Philadelphia  in  May,  1787,  and 
fused  together  over  the  slow  fires  of  prolonged  debate  the  ele- 
ments of  English  and  colonial  precedent  which  were  to  consti- 
tute the  government  of  the  United  States.  In  the  debates  of 
that  Convention  during  that  memorable  summer  are  to  be  read 
the  particulars  of  the  translation  of  English  precedent  into 
American  practice  made  during  the  formative  colonial  period. 
Through  the  instrumentality  of  the  able  men  who  composed 
that  extraordinary  assembly,  the  government  of  the  United 
States  was  fitted  out  with  the  full  experience  of  the  colonies 
and  of  the  revolutionary  states.^  It  was  arranged  that  the 
legislature  of  the  new  federal  government  should  consist  of 
two  houses,  not  in  direct  imitation  of  the  English  system, 
whose  House  of  Lords  we  did  not,  of  course,  have  the  mate- 
rials for  reproducing,  but  in  conformity  with  an  almost  univer- 
sal example  set  by  the  states.  A  single  state  furnished  the 
precedent  in  accordance  with  which  a  real  difference  of  char- 
acter was  given  to  the  two  houses.  The  lower  house  of  the 
Connecticut  legislature  was  constituted  by  an  equal  represen- 

1  In  describing  the  work  of  the  Convention  I  follow  here  Professor 
Alexander  Johnston's  clear  exposition  given  in  the  New  Princeton  Beview 
for  September,  1887,  under  the  title  "  The  First  Century  of  the  Con- 
stitution." A  convenient  brief  survey  of  the  chief  features  of  the  state 
constitutions  at  the  time  of  the  formation  of  the  present  government  of  the 
Union  may  be  found  in  Hildretb,  Vol.  III.,  Chap.  XLIV. 


474       THE  GOVERNMENT  OE  THE  UNITED  STATES. 

tation  of  the  towns  of  the  state,  while  her  upper  house  repre- 
sented her  people  at  large  :  and  Connecticut's  example  showed 
the  Convention  a  convenient  way  of  compromise  by  which 
they  could  reconcile  the  two  parties  within  it  which  were  con- 
tending, the  one  for  an  equal  representation  of  the  states  in  Con- 
gress after  the  absolute  manner  of  the  Confederation,  the  other 
for  a  proportional  representation  of  the  people  simply.  The 
Senate,  it  was  agreed,  should  represent  the  states  equally, 
the  House  of  Eepresentatives  the  people  proportionally.  The 
names  Senate  and  House  of  Eepresentatives  were  to  be  found 
already  in  use  by  several  of  the  States.  The  single  Executive, 
the  President,  was  an  obvious  copy  of  the  state  governors, 
many  of  whom  at  that  time  bore  the  name  of  president ;  his 
veto  power  was  to  be  found  formulated  ready  to  hand  in  the 
constitution  of  Xew  York:  a  method  of  impeachment  was 
already  prepared  in  the  constitutions  of  half  a  dozen  states. 
Several  states  had  also  the  office  of  Vice-President.  With  a 
fine  insight  into  the  real  character  of  the  government  which 
they  were  constructing,  the  Convention  provided  that  its  judi- 
ciary should  be  placed,  not  under  the  President  or  the  houses, 
but  alongside  of  them,  upon  a  footing  of  perfect  equality  with 
them,  and  that  with  it,  as  a  co-ordinate  branch  of  the  govern- 
ment, should  rest  the  weighty  prerogative  of  passing  upon  the 
constitutionality  of  all  laws.  A  similar  arrangement  obtained 
under  the  state  constitutions,  but  the  function  of  constitutional 
interpretation  was  necessarily  as  old  as  written  charters  and 
constitutions,  had  been  an  inevitable  corollary  to  their  funda- 
mental proposition  of  a»gift  of  limited  powers.  Written  con- 
stituent law  is  by  its  very  nature  a  law  higher  than  the  legis- 
lature acting  under  it  can  enact,  and  by  that  law,  as  by  an  in- 
variable standard,  must  the  courts  test  all  acts  of  legislation.^ 
The  colonial  courts  had  often  upon  this  principle  questioned 
the  validity  of  colonial  legislation,  and  the  Supreme  Court  of 

1  See  A.  V,  Dicey,  The  Laio  of  the  Constitution,  Chap.  III.;  and  J.  Bryce, 
The  American  Commonwealth,  Chap.  XXIII. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  475 

the  United  States  had  long  had  a  prototype  in  the  Judicial 
Committee  of  the  Privy  Council,  whose  function  it  was  to  hear 
appeals  from  the  colonies,  and  whose  practice  it  had  been  to 
pronounce  against  all  laws  incompatible  with  the  royal  charters 
(sees.  736,  826). 

870.  When  they  came  to  equip  Congress  with  powers,  the 
Convention  adopted  the  plan  of  careful  enumeration :  it  set 
out  the  acts  of  government  which  were  to  be  permitted  to  the 
legislature  of  the  new  government  in  a  distinctly  cast  list  of 
eighteen  items.  Even  in  doing  this,  however,  they  may  be  said 
to  have  been  simply  recording  the  experience  of  the  Confed- 
eration :  they  were  giving  Congress  the  powers  for  lack  of 
which  the  Congress  of  the  Confederation  had  proved  helpless 
and  ridiculous.  It  was  only  when  they  came  to  construct  the 
machinery  for  the  election  of  the  President  that  they  left  the 
field  of  American  experience  and  English  example  and  devised 
an  arrangement  which  was  so  original  that  it  was  destined  to 
break  down  almost  as  soon  as  it  was  put  in  operation. 

871.  This  general  statement  of  the  broader  features  of  the  selective 
work  of  the  Convention  will  suffice  for  the  present :  other  more 
particular  references  to  state  precedent  and  experience  may  be  made  in 
their  proper  connections  in  our  further  discussion  of  the  government. 
I  wish  in  these  paragraphs  only  to  fix  the  attention  of  the  student,  by 
way  of  clarifying  preparation,  upon  the  instructive  fact  that  the  work 
of  the  Convention  was  a  work  of  selection,  not  a  work  of  creation,  and 
that  the  success  of  their  work  was  not  a  success  of  invention,  always 
most  dangerous  in  government,  but  a  success  of  judgment,  of  selective 
wisdom,  of  practical  sagacity, —  the  only  sort  of  success  in  politics 
which  can  ever  be  made  permanent. 

872.    Character  of  the  New  Government.  —  It  is  one  of 

the  distinguishing  characteristics  of  the  English  race  whose 
political  habit  has  been  transmitted  to  us  through  the  sagacious 
generation  by  whom  this  government  was  erected  that  they 
have  never  felt  themselves  bound  by  the  logic  of  laws,  but 
only  by  a  practical  understanding  of  them  based  upon  slow 
precedent.    Eor  this  race  the  law  under  which  they  live  is  at 


476       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

any  particular  time  what  it  is  then  understood  to  be;  and  this 
understanding  of  it  is  compounded  of  tlie  circumstances  of  the 
case.  Absolute  theories  of  legal  consequence  they  have  never 
cared  to  follow  out  to  their  conclusions.  Their  laws  have 
always  been  used  as  parts  of  the  practical  running  machinery 
of  their  politics,  —  parts  to  be  fitted  from  time  to  time,  by 
interpretation,  to  existing  opinion  and  social  condition. 

873.  Character  of  the  Government  Changes  with  Opin- 
ion. —  It  requires  a  steady,  clear-viewed,  thoroughly  informed 
historical  sense,  therefore,  to  determine  what  was  at  any  given 
time  the  real  character  of  our  political  institutions.  To  us  of 
the  present  day  it  seems  that  the  Constitution  framed  in  1787 
gave  birth  in  1789  to  a  national  government  such  as  that 
which  now  constitutes  an  indestructible  bond  of  union  for  the 
states ;  bu.t  the  men  of  that  time  would  certainly  have  laughed 
at  any  such  idea,  —  and  for  the  English  race,  as  I  have  said, 
every  law  is  what  those  who  administer  it  think  that  it  is. 
The  men  of  1789  meant  to  form  "  a  more  perfect  union  "  than 
that  which  had  existed  under  the  Confederation :  they  saw 
that  for  the  colonies  there  must  be  union  or  disintegration ; 
they  thought  union  needful  and  they  meant  to  have  it  in  any 
necessary  degree.  But  they  had  no  special  love  for  the  union 
which  they  set  about  consummating,  and  they  meant  to  have  as 
little  of  it  as  possible,  —  as  little  as  might  be  compatible  with 
wise  providence  as  to  the  welfare  of  the  new-fledged  states. 
They  were  even  more  afraid  of  having  too  strong  a  central 
government  than  of  having  one  which  was  too  weak,  and  they 
accepted  the  new  constitution  offered  them  by  the  Convention 
of  1787  because  convinced  of  the  truth  of  the  arguments  urged 
by  its  friends  to  the  effect  that  the  union  would  be  federal 
merely  and  would  involve  no  real  sacrifice  of  individuality  or 
autonomy  on  the  part  of  the  states. 

871.  Early  Sentiment  towards  the  Union.  —  It  is  aston- 
ishinsr  to  us  of  this  creueration  to  learn  how  much  both  of 
hostility  and  of  indifference  was  felt  for  the  new  government, 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  477 

which  we  see  to  have  been  the  salvation  of  the  country.  Even 
those  who  helped  make  it  and  who  worked  most  sincerely  for 
its  adoption  entertained  grave  doubts  as  to  its  durability ; 
some  of  them  even  questioned,  in  despondent  moments,  its 
usefulness.  Philosophic  statesmen  like  Alexander  Hamilton 
supported  it  with  ardent  purpose  and  sustained  hope ;  but  for 
the  average  citizen,  who  was  not  in  the  least  degree  philo- 
sophic, it  was  at  first  an  object  of  quite  unexciting  contempla- 
tion. It  was  for  his  state,  each  man  felt,  that  his  blood  and 
treasure  had  been  poured  out :  it  was  that  Massachusetts  and 
Virginia  might  be  free  that  the  war  had  been  fought,  not  that 
the  colonies  might  have  a  new  central  government  set  up  over 
them ;  patriotism  was  state  patriotism.  The  states  were  living, 
organic  persons  :  the  union  was  an  arrangement,  —  possibly  it 
would  prove  to  be  only  a  temporary  arrangement ;  new  adjust- 
ments might  have  to  be  made. 

875.  Early  Tolerance  for  Threats  of  Secession.  —  It  is 
by  this  frame  of  mind  on  the  part  of  the  first  generation  that 
knew  the  present  constitution  that  we  must  explain  the  un- 
doubted early  tolerance  for  threats  of  secession.  The  Union 
was  too  young  to  be  sacred ;  the  self-love  of  the  states  was  too 
pronounced  to  be  averse  from  the  idea  that  complete  state 
independence  might  at  any  time  be  resumed.  Discontent  in 
any  quarter  was  the  signal  for  significant  hints  at  possible 
withdrawal.  As  the  new  system  lived  on  from  year  to  year 
and  from  year  to  year  approved  itself  strong  and  effective  it 
became  respected ;  as  it  gathered  dignity  and  force  regard  was 
added  to  respect,  until  at  last  the  federal  government  became 
a  rallying  centre  for  great  parties  moved  by  genuine  national 
sentiment.  But  at  first  neither  love  nor  respect  shielded 
the  federal  authorities  from  the  jealousies  and  menaces  of  the 
states.  The  new  government  was  to  grow  national  with  the 
growth  of  a  national  histojfy  and  a  national  sentiment. 

876.  Growth  of  the  National  Idea.  —  The  career  and  fate 
of  the  Federalist  Party  very  well  illustrate  the  first  state  of 


478       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

opinion  concerning  the  Union.  The  Federalist  party  was  the 
party  of  the  Constitution,  —  the  party  which  had  been  chiefly 
instrumental  in  bringing  about  the  adoption  of  the  new  frame 
of  government.  Immediately  upon  the  inauguration  of  the 
present  Union  this  party  of  its  friends  was  put  in  charge  of 
the  new  central  body  politic.  It  presided  over  the  critical 
period  of  its  organization,  and  framed  the  first  measures  which 
gave  it  financial  credit,  international  consideration,  security, 
and  energy.  But  it  soon  became  evident  that  the  Federalists 
held  views  as  to  the  nature  of  the  new  government  which  not 
all  of  those  who  had  voted  for  the  adoption  of  the  Constitu- 
tion were  willing  to  sanction.  They  assumed  for  the  federal 
authorities  prerogatives  of  too  great  absoluteness,  and  seemed 
to  not  a  few  to  be  acting  upon  the  idea  that  the  purpose  of  the 
Constitution  was  to  subordinate,  and  if  need  be  sacrifice,  state 
interests  to  the  interests  of  the  general  government.  Very 
speedily,  therefore,  they  brought  a  reaction  upon  themselves, 
and  were  displaced  by  a  party  which  felt  that  the  limitations 
put  by  the  Constitution  upon  federal  authority  ought  to  be 
very  strictly  observed.  This  new  party,  calling  itself  ^Demo- 
cratic-Republican, '  may  be  said  to  have  been  created  by  the 
injudicious  excesses  of  the  Federalists ;  and  from  this  point  of 
view  the  Federalist  party  may  be  said  to  have  effected  its  own 
destruction.  After  its  first  national  defeat  it  never  again  came 
into  power.  Rapidly  in  some  places,  slowly  in  others,  it  went 
utterly  to  pieces. 

877.  But,  although  the  Federalist  party  was  destroyed,  time 
worked  in  favor  of  its  political  conceptions.  The  Democratic- 
Republicans  soon  found  that  success  in  conducting  the  affairs 
of  the  federal  government  was,  even  for  them,  conditioned 
upon  very  liberal  readings  of  the  authority  conferred  by  the 
Constitution ;  and  by  slow  degrees  they  drifted  into  practices 
of  ^  broad  construction '  quite  as  abhorrent  to  their  own  first 
principles  as  the  much-berated  measures  of  the  Federalists 
had  been.    But  the  Democratic-Republicans, — or  the  Demo- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  479 

crats,  as  they  were  before  long  more  briefly  described,  —  had 
the  advantage  of  a  corresponding  change  in  public  opinion. 
That,  too,  was  steadily  becoming  nationalist  in  its  tendencies. 

878.  Railroads,  Expansion,  and  War  aid  the  National  Idea. 

—  So  long  as  the  people  of  one  section  of  the  country  saw 
little  or  nothing  of  the  people  of  the  other  sections,  separate- 
ness  of  feeling  and  localness  of  view  continued  to  exist  and  to 
exercise  a  controlling  force ;  the  majority  of  the  people  contin- 
ued to  put  the  states  before  the  nation  in  their  thoughts  and 
to  demand  more  or  less  punctilious  regard  for  state  preroga- 
tives. But  when  railroads  began  to  be  built  and  to  multiply ; 
when  people  from  all  parts  of  the  Union  began  to  go  out  and 
settle  the  West  together ;  when  seeing  each  other  and  trading 
with  each  other  began  to  make  the  people  of  all  the  states  very 
much  alike  in  most  of  the  greater  things  of  habit  and  institu- 
tion, and  even  in  most  of  the  smaller  things  of  opinion  and  con- 
duct ;  when  new  states  which  had  grown  up  in  the  West  with- 
out any  of  the  old  conservative  colonial  traditions  began  to  be 
admitted  to  the  Union  in  increasing  numbers,  regarding  them- 
selves as  born  in  and  of  the  Union ;  when  a  second  war  with 
England  and  a  hot  struggle  with  Mexico  had  tested  the  gov- 
ernment and  strengthened  a  sentiment  of  national  patriotism, 

—  then  at  length  it  began  to  be  very  generally  thought  that 
the  Federalists  had  been  right  after  all ;  that  the  federal  gov- 
ernment ought  to  come  first  in  consideration,  even  at  the  cost 
of  some  state  pride. 

879.  Slavery  stands  in  the  Way  of  Nationality.  — What 
stood  most  in  the  way  of  the  universal  growth  of  this  sort  of 
national  feeling  was  the  great  difference  between  the  northern 
and  southern  portions  of  the  Union  caused  by  the  existence 
of  slavery  in  the  South.  So  long  as  the  laborers  in  the  South 
were  slaves  and  those  of  the  North  free  men,  these  two  sec- 
tions could  not  become  like  one  another  either  socially  or 
politically,  and  could  not  have  the  same  national  feeling.  The 
North  and  Northwest  meant  one  thing  when  they  spoke  of  the 


480       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

nation ;  the  South,  meant  quite  another  thing.  Each  meant 
a  nation  socially  and  politically  like  itself.  The  two  sections, 
therefore,  rapidly  became  dissatisfied  with  living  together  under 
the  same  political  system,  and  the  secession  so  much  talked 
about  in  various  quarters  in  the  earlier  days  of  the  Union  at 
last  became  a  reality.  Inevitably  came  the  war  of  secession, 
by  means  of  whose  fiery  processes  the  differences  of  institution 
between  Xorth  and  South  were  to  be  swept  utterly  away. 

880.  Civil  War  completes  the  Union. — The  war  wrought 
changes  of  the  most  profound  character.  Secession  was  pre- 
vented, the  Union  was  preserved,  and  slavery  was  forever 
abolished ;  these  were  the  immediate  effects  of  the  struggle ; 
but  the  remoter  results  were  even  more  important.  They  pene- 
trated to  the  changing  of  the  very  nature  of  the  Union,  though 
the  form  of  the  federal  government  remained  in  all  essential 
features  unaltered.  The  great  effect  of  the  war  was,  that  the 
nation  was  made  homogeneous.  There  was  no  longer  any 
permanent  reason  why  the  South  should  not  become  like  the 
rest  of  the  country  in  character  and  sentiment.  Both  sections 
were  brought  to  the  same  modes  of  life  and  thought;  there 
was  no  longer  any  obstacle  to  our  being  in  reality  one  great 
nation.  The  effort  made  in  the  war,  moreover,  to  preserve  the 
Union,  and  the  result  of  the  war  in  making  the  country  at  last 
homogeneous  throughout,  has  made  the  federal  government,  as 
representative  of  the  nation,  seem  greater  in  our  eyes  than 
ever  before,  and  has  permanently  modified  in  the  profoundest 
manner  the  way  in  which  all  the  old  questions  concerning 
constitutionality  and  state  rights  are  regarded. 

881.  Present  Character  of  the  Union.  — It  of  course  by  no 
means  follows  that  because  we  have  become  in  the  fullest  or- 
ganic sense  a  nation,  ours  has  become  a  unitary  government, 
its  federal  features  merged  in  a  new  national  organization. 
The  government  of  the  Union  has  indeed  become  permanent, 
the  cherished  representative,  the  vital  organ  of  our  life  as  a 
nation ;  but  the  states  have  not  been  swallowed  up  by  the  fed- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  481 

eral  power :  their  prerogatives  are  as  essential  to  our  system 
as  ever,  —  are  indeed  becoming  more  and  more  essential  to  it 
from  year  to  year  as  the  already  vastly  complex  organism  of 
the  nation  expands.  But,  instead  of  regarding  the  government 
of  the  United  States  and  the  government  of  a  state  as  two 
governments,  as  our  fathers  did,  we  now  regard  them,  —  if  we 
may  make  a  matter-of-fact  analysis  of  our  w^orking  views  in 
politics,  —  as  two  parts  of  one  and  the  same  government,  two 
complementary  parts  of  a  single  system.  The  value  of  the  plan 
of  government  which  our  statesmen  adopted  at  the  first,  the 
plan  of  functions  divided  between  national  and  state  author- 
ities, has  abated  not  a  whit :  we  are  only  a  little  less  anxious 
about  the  clearness  of  the  lines  of  division.  The  national 
government  still  has  its  charter,  somewhat  enlarged  since  the 
war,  but  substantially  the  same  document  as  of  old ;  and  the 
national  authorities  must  still  confine  themselves  to  measures 
within  the  sanction  of  that  charter:  the  state  governments, 
too,  still  have  their  charters,  and  still  have  valid  claim  to  all 
powers  not  specifically  delegated  to  the  government  of  the 
Union.  Liberal  construction  of  the  federal  charter  the  nation 
wants,  but  not  a  false  construction  of  it.  The  nation  properly 
comes  before  the  states  in  honor  and  importance,  not  because 
it  is  more  important  than  they  are,  but  because  it  is  all-impor- 
tant to  them  and  to  the  maintenance  of  every  principle  of 
government  which  we  have  established  and  now  cherish.  The 
national  government  is  the  organic  frame  of  the  states :  it  has 
enabled,  and  still  enables,  them  to  exist. 

882.  Present  Character  of  the  Government  of  the  Union. 
—  It  is  perhaps  most  in  accordance  wdth  the  accomplished 
results  of  our  national  development  to  describe  the  government 
of  the  United  States,  not  as  a  dual  government,  but  as  a  double 
government,  so  complete  is  the  present  integration  of  its  state 
and  federal  parts.  Government  with  us  has  ceased  to  be  plural 
and  has  become  singular,  the  government  of  the  United  States  : 
distinct  as  are  its  parts,  they  are  not  separate.   For  the  sake  of 


482       THE  GOVERmiENT  OF  THE  UNITED  STATES. 

convenience,  we  sj^eak  of  the  government  of  the  Union  and  of 
the  government  of  a  state,  as  if  the  two  were  quite  separate ; 
but  such  phraseology  scarcely  conveys  a  just  impression  of  the 
realities  of  our  practice.  The  state  and  federal  systems  are  so 
adjusted  under  our  public  law  that  they  may  not  only  operate 
smoothly  and  effectively  each  in  the  sphere  which  is  exclu- 
sively its  own,  but  also  fit  into  each  other  with  perfect  har- 
mony of  co-operation  wherever  their  jurisdictions  cross  or  are 
parallel,  acting  as  parts  of  one  and  the  same  frame  of  govern- 
ment, with  an  uncontested  subordination  of,  functions  and  an 
undoubted  common  aim. 

883.  Although  these  two  parts  of  our  government  are  thus 
vitally  united,  however,  thus  integrated  into  what  is  in  reality 
a  single  scheme  of  government,  state  law  by  no  means  depends 
upon  federal  law  for  its  sanction.  The  Constitution  of  the 
United  States  and  the  la^vs  and  treaties  passed  in  pursuance 
thereof  are  indeed  the  supreme  law  of  the  land,  but  their  su- 
premacy does  not  trench  upon  or  displace  the  self-originated 
authority  of  the  states  in  the  immensely  important  sphere  re- 
served to  them.  Although  it  is  true,  taking  our  system  as  a 
whole,  that  the  governments  of  the  states  are  subordinate  in 
our  political  order  to  the  government  of  the  Union,  they  are 
not  subordinate  in  the  sense  of  being  subject  to  be  commanded 
by  it,  but  only  in  being  less  than  national  in  their  jurisdiction. 

884.  The  States  not  Administrative  Divisions  but  Con- 
stituent Members  of  the  Union.  —  The  common  and  conven- 
ient distinction  between  central  and  local  government  furnishes 
no  ground  of  discrimination  as  between  the  federal  and  state 
governments.  A  central  government,  as  contradistinguished 
from  a  local  government  within  the  meaning  of  this  distinc- 
tion, is  a  government  which  prescribes  both  the  constitution 
and  the  mode  of  action  of  the  lesser  organs  of  the  system  to 
which  it  belongs.  This  the  governments  of  the  states  do  with 
reference  to  the  townships,  the  counties,  the  cities  within  their 
territories :  these  local  bodies  are  merely  administrative  divis- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  488 

ions  of  the  states,  agencies  delegated  to  do  the  daily  work  of 
government.  But,  of  course,  there  is  no  such  relationship 
between  the  federal  government  and  the  states.  They  are  not 
administrative  divisions  but  constituent  members  of  the  Union, 
co-ordinate  with  the  Union  in  their  powers,  in  no  sense  subject 
to  it  in  their  appropriate  spheres.  They  are  excluded,  indeed, 
by  the  federal  Constitution  from  the  exercise  of  certain  func- 
tions, but  the  great  and  all-important  functions  which  they  do 
exercise  are  not  given  them  by  that  Constitution :  they  are  ex- 
ercised, on  the  contrary,  upon  the  completest  principles  of  self- 
direction.  We  may  properly  distinguish  the  government  of  a 
county  and  the  government  of  a  state  by  the  distinction  be- 
tween local  and  central  government,  but  not  the  government 
of  a  state  and  the  government  of  the  Union. 

Character,  Organs,  and  Functions  of  the  States. 

885.  The  States  properly  come  first  in  a  description  of  the 
government  of  this  country,  not  only  because  it  was  in  conform- 
ity with  state  models  and  precedents  that  the  federal  govern- 
ment was  constructed,  but  also  and  more  particularly  because 
the  great  bulk  of  the  business  of  government  still  rests  with 
the  state  authorities ;  because  the  states  still  carry  by  far  the 
greater  part  of  the  weight  of  the  governing  function,  still  con- 
stitute the  ordinary  fountains  of  justice  and  of  legal  right,  still 
stand  nearest  the  people  in  the  regulation  of  all  their  social 
and  legal  relationships.  Like  the  Swiss  Cantons  (sec.  515), 
our  states  have  given  to  the  government  wdiich  binds  them  to- 
gether their  own  forms  of  constitution ;  but  even  more  than 
the  Cantons  have  our  states  retained  their  right  to  rule  their 
citizens  in  all  ordinary  matters  without  federal  interference. 
They  are  the  chief  creators  of  law  among  us.  They  are  the 
chief  constituent  units  of  our  political  system  not  only,  but 
are  also  self-directive  units.  They  make  up  the  mass,  the  body, 
the  constituent  tissue,  the  organic  stuff  of  the  government  of 


484       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

the  country.  To  them  is  intrusted  our  daily  welfare,  to  the 
federal  government  only  our  collective  interests.  Upon  the 
character  of  the  state  governments  depends  the  character  of 
the  nation  in  its  several  constituent  members;  upon  the  char- 
acter of  the  federal  government  depends  the  character  of  the 
nation  as  a  whole.  If  we  are  to  begin  our  study  of  our  insti- 
tutions at  the  centre,  the  heart  of  self-government,  we  must 
begin  with  the  states. 

886.  The  Law  of  the  States:  Its  Character.  —  The  law 
of  each  state  consists  of  two  great  parts,  (1)  the  Constitution, 
statutes,  and  treaties  of  the  United  States  and  (2)  the  consti- 
tution and  statutes  of  the  state.  The  Constitution,  statutes, 
and  treaties  of  the  United  States  are  the  supreme  law  of  the 
land  not  so  much  in  the  sense  of  being  set  above  the  constitu- 
tions and  laws  of  the  states  as  in  the  sense  of  being,  by  virtue 
of  the  principles  of  our  public  law,  integral  parts  of  the  law  of 
the  states.  The  constitutions  of  several  of  the  states  declare 
the  Constitution  of  the  United  States  to  be  a  part  of  the  fun- 
damental law  of  those  states :  but  such  declarations  are  only 
formal  recognitions  of  a  principle  now  indubitable.  On  their 
legal  as  well  as  on  their  political  side  the  two  parts  of  our  sys- 
tem have  been  completely  integrated.  Upon  the  state  courts 
as  well  as  upon  the  courts  of  the  United  States  rests  the  duty 
of  administering  federal  law.  The  federal  Constitution  is  a 
negative  portion  of  state  law  in  respect  of  the  limitations 
which  it  sets  to  the  sphere  of  state  activity  ;  but  the  laws 
passed  by  Congress  under  the  authority  of  that  Constitution  are 
also  positive  portions  of  state  law,  whose  mandates  all  officers 
of  government,  whether  state  or  federal,  are  bound  to  observe. 

887.  The  constituted  authorities  of  the  states  do  not  stand 
in  the  same  relation,  however,  to  the  Constitution  and  laws  of 
the  Union  that  they  bear  to  state  law :  of  state  law  they  are 
the  final  interpreters,  but  of  federal  law  they  are  only  provis- 
ional interpreters.  In  acting  upon  federal  law  state  officers 
always  act  subject  to  the  supervision  of  the  federal  tribunals. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  485 

888.  The  functions  of  the  state  courts  with  regard  to  the 
interpretation  of  federal  law  very  forcibly  illustrate  the  adjust- 
ments of  our  system.  If  in  any  case  brought  in  a  state  court  the  ques- 
tion arise  whether  a  certain  state  law  involved  in  the  case  is  or  is  not  in 
violation  of  the  Constitution  of  the  United  States,  the  court  may  freely 
give  its  judgment  upon  the  question,  and  if  its  judgment  be  that  the  law 
is  not  constitutional  that  judgment  is  conclusive :  only  when  it  declares 
the  law  to  be  in  agreement  with  the  federal  Constitution  may  its  opinion 
be  cited  to  a  federal  tribunal  for  revision.  The  federal  law  is,  thus,  not 
regarded  as  a  thing  apart  from  the  law  of  a  state,  too  sacred  to  be 
handled  by  any  but  the  federal  courts,  its  specially  constituted 
guardians :  it  is  a  part  of  state  law  and  the  state  courts  may  declare 
and  apply  its  principles.  But  of  course  in  the  last  resort  the  federal 
courts  are  themselves  to  shield  it  from  a  too  liberal  or  too  prejudiced 
judgment  by  state  judges,  who  may  very  conceivably  be  interested  to 
vindicate  the  statutes  of  their  state  as  against  any  objections  drawn 
from  the  law  of  the  Union.  Both  for  the  sake  of  making  it  uniform 
and  for  the  sake  of  keeping  it  supreme  must  federal  law  receive  its  final 
adjudication  in  its  own  courts. 

889.  Scope  of  State  Law.  —  A  moment's  thought  suffices  to 
reveal  how  very  great  a  field  of  activity,  how  preponderant  a 
part  remains  under  our  system  to  the  states.  The  powers  of 
the  federal  government  seem  great  by  enumeration:  besides 
being  intrinsically  powers  of  the  greatest  importance,  they  are 
made  the  more  imposing  in  the  Constitution  by  the  fact  of 
their  being  set  forth  in  an  exhaustive  list.  The  residuum  of 
powers  that  remains  to  the  states,  consisting  as  it  does  of  un- 
enumerated  items,  is  of  course  vague,  and  because  vague  seems 
unimportant  by  comparison.  A  moment's  examination  of  this 
residuum  however,  a  moment's  consideration  of  its  contents, 
puts  a  very  different  face  on  the  matter.  It  is  worth  while 
for  the  sake  of  an  adequate  understanding  of  the  real  division 
of  powers  under  our  government  to  give  to  the  powers  remain- 
ing with  the  states  something  like  the  same  setting  forth  that 
is  given  to  those  granted  to  the  Union. 

890.  Legislative  Powers  of  the  Union.  —  The  Constitution  of 
the  United  States  grants  to  Congress  first  of  all,  of  course,  the 


486       THE  aOVERNMENT  OF  THE  UNITED  STATES. 

power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises  for 
the  support  of  the  government  of  the  Union,  the  payment  of  its 
debts,  and  the  promotion  of  the  common  defence  and  welfare, 
and  also  the  power  to  borrow  money  on  the  credit  of  the  United 
States ;  but  these  powers  of  taxation  and  borrowing  belong  also 
to  the  states,  except  that  they  must  raise  their  revenues  with- 
out resort  to  duties,  imposts,  and  excises,  the  privilege  of  impos- 
ing these  being  reserved  to  the  Union  exclusively.  The  powers 
which  distinguish  the  general  government  from  the  govern- 
ments of  the  states  are  not  these  powers  of  raising  money  but 
these  others :  To  control  the  monetary  system  of  the  country, 
to  maintain  post-offices  and  post-roads,  to  grant  patents  and 
copyrights,  to  deal  with  crimes  committed  on  the  high  seas  or 
against  the  law  of  nations,  to  shape  the  foreign  relations  of 
the  country,  to  declare  war  and  control  the  military  forces  of 
the  nation,  and  to  regidate  commerce  both  with  foreign  coun- 
tries and  among  the  states.  It  is  empowered  also  to  establish 
uniform  rules  of  naturalization  and  uniform  laws  concerning 
bankruptcy  ;  but  these  powers  do  not  belong  to  it  exclusively  ; 
in  case  Congress  does  not  act  in  these  matters,  the  states  may 
adopt  laws  for  themselves  concerning  them.  All  the  powers 
of  the  general  government  are  plainly  such  as  affect  interests 
which  it  would  be  impossible  to  regulate  harmoniously  by  any 
scheme  of  separate  state  action,  and  only  such ;  all  other 
powers  whatever  remain  with  the  states. 

891.  Powers  withheld  from  the  States. — Some  powers  the 
Constitution  of  the  United  States  expressly  withholds  from  the 
states,  besides  those  granted  exclusively  to  the  general  govern- 
ment :  No  state  may  pass  any  bill  of  attainder,  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts,  or  grant  any  title 
of  nobility ;  no  state  may,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties,  keep  troops  or  ships  of  war  in  time 
of  peace,  enter  into  any  agreement  with  another  state  or  with 
a  foreign  power,  or  engage  in  v^ar  unless  actually  invaded  or 
in  such  immediate  danger  as  will  not  admit  of  delay.  But 


TH^  GOVERNMENT  OF  THE  UNITED  STATES.  487 


these  prohibitions  obviously  curtail  scarcely  at  all  the  sphere 
which  the  states  would  in  any  case  normally  occupy  within 
the  scheme  of  federal  union. 

892.  Powers  left  with  the  States.  —  Compared  with  the 
vast  prerogatives  of  the  state  legislatures,  these  limitations 
seem  small  enough.  All  the  civil  and  religious  rights  of  our 
citizens  depend  upon  state  legislation;  the  education  of  the 
people  is  in  the  care  of  the  states  ;  with  them  rests  the  regula- 
tion of  the  suffrage  ;  they  prescribe  the  rules  of  marriage,  the 
legal  relations  of  husband  and  wife,  of  parent  and  child ;  they 
determine  the  powers  of  masters  over  servants  and  the  whole 
law  of  principal  and  agent,  which  is  so  vital  a  matter  in  all 
business  transactions ;  they  regulate  partnership,  debt  and 
credit,  insurance  ;  they  constitute  all  corporations,  both  private 
and  municipal,  except  such  as  specially  fulfil  the  financial  or 
other  specific  functions  of  the  federal  government ;  they  con- 
trol the  possession,  distribution,  and  use  of  property,  the  exer- 
cise of  trades,  and  all  contract  relations ;  and  they  formulate 
and  administer  all  criminal  law,  except  only  that  which  con- 
cerns crimes  committed  against  the  United  States,  on  the  high 
seas,  or  against  the  law  of  nations.  Space  would  fail  in  which 
to  enumerate  the  particulars  of  this  vast  range  of  power ;  to 
detail  its  parts  would  be  to  catalogue  all  social  and  business 
relationships,  to  examine  all  the  foundations  of  law  and  order. 

893.  A  striking  illustration  of  the  preponderant  part  played  by  state 
law  under  our  system  is  supplied  in  the  surprising  fact  that  only  one 
out  of  the  dozen  greatest  subjects  of  legislation  which  have  engaged 
the  public  mind  in  England  during  the  present  century  would  have  come 
within  the  powers  of  the  federal  government  under  the  Constitution  as 
it  stood  before  the  war,  only  two  under  the  Constitution  as  it  stands 
since  the  addition  of  the  war  amendments.  I  suppose  tliat  I  am  justi- 
fied in  singling  out  as  these  twelve  greatest  subjects  of  legislation  the 
following:  Catholic  emancipation,  parliamentary  reform,  the  abolition 
of  slavery,  the  amendment  of  the  poor-laws,  the  reform  of  municipal 
corporations,  the  repeal  of  the  corn  laws,  the  admission  of  the  Jews  to 
Parliament,  the  disestablishment  of  the  Irish  church,  the  alteration  of 


488       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

tlie  Irish  land  laws,  the  establishment  of  national  education,  the  intro- 
duction of  the  ballot,  and  the  reform  of  the  criminal  law.  Of  these 
every  one  except  the  corn  laws  and  the  abolition  of  slavery  would  have 
been  under  our  system,  so  far  as  they  could  be  dealt  with  at  all,  subjects 
for  state  regulation  entirely ;  and  of  course  it  was  only  by  constitutional 
amendment  made  in  recognition  of  the  accomplished  facts  of  the  war  that 
slavery,  which  was  formerly  a  question  reserved  for  state  action,  and  for 
state  action  alone,  was  brought  within  the  field  of  the  federal  authority 

894.  Non-constitutional  Provisions  in  State  Constitutions. 

—  One  of  the  most  characteristic  features  of  our  state  law  is 
the  threatened  loss  of  all  real  distinction  between  constitu- 
tional and  ordinary  law.  Constitutions  are  of  course  adver- 
tised by  their  name  to  be  bodies  of  law  by  which  government 
is  constituted,  by  which,  that  is,  government  is  given  its  organ- 
ization and  functions.  Private  law,  the  regulation  of  the 
relations  of  citizens  to  each  other  in  their  private  capacities, 
does  not  fall  within  their  legitimate  province.  This  principle 
is  fully  recognized  in  the  construction  of  our  federal  Constitu- 
tion, which  is  strong  and  flexible  chiefly  because  of  its  great, 
its  admirable  simplicity  and  its  strictly  constitutional  scope. 
But  constitution-making  in  the  states,  especially  in  the  newer 
states,  has  proceeded  upon  no  such  idea.  Not  only  do  the 
constitutions  of  the  states  go  very  much  more  into  detail  in 
their  prescriptions  touching  the  organization  of  the  govern- 
ment; they  go  far  beyond  organic  provisions  and  undertake 
the  ordinary,  but  very  different,  work  of  legislative  enactment. 
They  commonly  embody  regulations,  for  example,  with  refer- 
ence to  the  management  of  state  property,  such  as  canals  and 
roads,  and  for  the  detailed  administration  of  the  state  debt ; 
they  determine  the  amounts  and  sorts  of  property  which  are 
to  be  exempt  from  seizure  for  private  debt ;  they  formulate 
sumptuary  laws,  such  as  those  forbidding  the  sale  of  intoxicat- 
ing liquors  ;  at  a  score  of  points  they  enter  without  hesitation 

1  See  J.  F.  Jameson,  Introduction  to  the  Constitutional  and  Political  His- 
tory of  the  Individual  States,  Johns  Hopkins  Univ.  Studies  in  Hist,  and  Pol. 
Sci.,  Fourth  Series,  p.  9  (continuous  p.  189). 


THE  GOVERNIVIENT  OF  THE  UNITED  STATES.  489 

or  misgiving  the  field  usually  reserved  for  the  action  of  legis- 
lative bodies. 

895.  Distrust  of  Legislation.  —  The  motive,  of  course,  is 
dissatisfaction  with  legislation,  distrust  of  legislators,  a  wish 
to  secure  for  certain  classes  of  law  a  greater  permanency  and 
stability  than  is  vouchsafed  to  statutes,  which  stand  in  con- 
stant peril  of  repeal.  A  further  motive  is  the  desire  to  give 
to  such  laws  the  sanction  of  a  popular  vote.  The  practice  has 
its  analogies  to  the  Swiss  Referendum  (sees.  521,  557).  It  is 
the  almost  universal  practice  throughout  the  Union  to  submit 
constitutional  provisions  to  a  vote  of  the  people  ;  and  the  non- 
constitutional  provisions  which  are  becoming  so  common  in 
our  constitutions  are  virtually  only  ordinary  laws  submitted 
to  popular  sanction  and  so  placed,  along  with  the  rest  of  the 
instrument  of  which  they  form  incongruous  parts,  beyond  the 
liability  of  being  changed  otherwise  than  through  the  acquies- 
cence of  the  same  ultimate  authority.  The  practice  perhaps 
discovers  a  tendency  towards  devising  means  for  making  all 
very  important  legal  provisions  dependent  upon  direct  popular 
participation  in  the  act  of  enactment. 

896.  The  objections  to  the  practice  are  as  obvious  as  they  are 
weighty.  General  outlines  of  organization,  such  as  the  Constitution  of 
the  United  States  contains,  may  be  made  to  stand  without  essential 
alteration  for  long  periods  together ;  but  in  proportion  as  constitutions 
make  provision  for  interests  whose  aspects  must  change  from  time  to 
time  with  changing  circumstance,  they  enter  the  domain  of  such  law  as 
must  be  subject  to  constant  modification  and  adaptation.  Not  only 
must  the  distinctions  between  constitutional  and  ordinary  law  hitherto 
recognized  and  valued  tend  to  be  fatally  obscured,  but  the  much  to  be 
desired  stability  of  constitutional  provisions  must  in  great  part  be  sac- 
rificed. Those  constitutions  which  contain  the  largest  amount  of  extra- 
neous matter,  which  does  not  concern  at  all  the  structure  or  functions 
of  government,  but  only  private  or  particular  interests,  must  of  course, 
however  carefully  drawn,  prove  subject  to  most  frequent  change.  In 
some  of  our  states,  accordingly,  constitutions  have  been  as  often 
changed  as  important  statutes.  The  danger  is  that  constitution-making 
will  become  with  us  only  a  cumbrous  mode  of  legislation. 


490       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

897.  In  one  or  two  of  the  States  the  Swiss  Referendum  has 
been  more  exactly  reproduced,  though  not,  so  far  as  I  know,  in 
conscious  imitation  of  Swiss  example.  Thus  the  Wisconsin 
constitution  leaves  it  with  the  people  to  decide  whether  banks 
shall  be  established  by  state  law  ot  not ;  and  the  constitution 
of  Minnesota  makes  certain  railway  laws  and  all  appropria- 
tions from  the  internal  improA^ement  land  fund  of  the  State 
dependent  for  their  validity  upon  the  sanction  of  a  popular 
vote. 

The  objections  to  the  referendum  are,  of  course,  that  it  assumes  a 
discriminating  judgment  and  a  fulness  of  information  on  the  part  of  the 
people  touching  questions  of  public  policy  which  they  do  not  often 
possess,  and  that  it  lowers  the  sense  of  responsibility  on  the  part  of 
legislators. 

898.  Constitutional  Amendments. — The  amendment  of 
state  constitutions,  like  the  amendment  of  the  federal  consti- 
tution, can  be  effected  only  by  elaborate,  formal,  and  unusual 
processes  which  are  meant  to  hedge  the  fundamental  law 
about  with  a  greater  dignity  and  sanctity  than  attaches  to  any 
other  body  of  legal  precepts.  The  theory  of  our  whole  consti- 
tutional arrangement  is,  that  the  people  have  not  only,  in 
establishing  their  constitutions,  bound  their  agents,  the  govern- 
ing bodies  and  officials  of  the  states,  but  have  also  bound 
themselves,  —  have  bound  themselves  to  change  the  funda- 
mental rules  which  they  have  made  only  by  certain  formal  and 
deliberate  processes  which  must  mark  the  act  of  change  as  at 
once  solemn  and  fully  advised. 

899.  In  England,  as  we  have  seen  (sec.  730),  constitutional  amend- 
ment is  not  distinguishable  from  simple  legislation.  Parliament  may, 
by  simple  Act,  change  any,  even  the  most  fundamental,  principle  of 
government  that  the  deliberate  opinion  of  the  nation  wishes  to  see 
changed.  Where  the  constitution  consists  for  the  most  part  of  mere 
precedent,  and  for  the  rest  of  Acts  of  Parliament  or  royal  ordinances 
simply,  it  may  be  altered  as  easily  as  precedent  may  be  departed  from. 
In  England  that  is  not  easil3^  The  great  conservative  force  there  is  the 
diflSculty  with  which  Englishmen  abandon  established  courses.  In 


THE  GOVERN>IENT  OF  THE  UNITED  STATES.  491 


Prance,  constitutional  amendment  differs  from  ordinary  legislation 
only  in  this,  that  the  two  chambers  must  sit  together  at  Versailles,  as  a 
single  National  Assembly,  when  passing  laws  which  affect  the  constitu- 
tion (sec.  318).  In  Germany  constitutional  amendment  differs  from 
ordinary  legislation  only  in  the  number  of  votes  required  for  the  pas- 
sage of  an  amendment  through  the  Bundesrath,  in  which  fourteen  nega- 
tive votes  will  defeat  it  (sees,  404,  406,  n.).  In  the  United  States, 
on  the  contrary,  constitutional  amendment  differs  from  ordinary  legis- 
lation both  in  formal  procedure  and  in  the  political  powers  called  into 
action  to  effect  it.    The  people  have  always  a  voice. 

900.  Preliminary  Steps  of  Amendment.  —  Legislatures, 
with  us,  may  not  undertake  any  general  revision  of  the  funda- 
mental law.  In  case  a  general  revision  of  a  state  constitution 
is  sought  to  be  effected,  the  legislature  is  empowered  to  pro- 
pose the  calling  of  a  popular  convention  to  be  chosen  specially 
for  the  purpose ;  the  question  whether  or  not  such  a  conven- 
tion shall  be  called  must  be  submitted  to  the  people ;  if  they 
vote  for  its  being  summoned,  it  is  elected  by  the  usual  suffrage ; 
it  meets  and  undertakes  the  revision,  and  then  submits  the 
results  of  its  labors  to  the  popular  vote,  which  may  either 
accept  those  results,  or  reject  them  and  fall  back  upon  the  old 
constitutional  arrangements. 

In  very  many  states  a  proposition  for  the  calling  of  such  a  conven- 
tion may  be  submitted  to  the  people  only  if  adopted  by  a  two-thirds 
vote  of  both  houses  of  the  legislature. 

901.  Proposal  of  Amendments.  —  Legislatures  may,  how- 
ever, themselves  propose  particular  amendments  to  constitu- 
tional provisions.  In  some  of  the  states  a  mere  majority  vote 
suffices  for  the  preliminary  adoption  of  amendments  by  the 
legislature,  though  in  most  larger  majorities,  ranging  from 
three-fifths  of  a  quorum  to  two-thirds  of  the  elected  members 
of  each  house,  must  be  obtained.  But  in  almost  all  cases 
popular  sanction  must  follow  :  a  vote  of  the  people  being  made 
an  indispensable  condition  precedent  to  the  incorporation  of 
an  amendment  in  the  fundamental  law.    In  many  states,  in- 


492       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


deed,  amendments  proposed  thus  by  the  legislature  must  be 
adopted  by  two  successive  legislatures  besides  receiving  the 
people's  sanction  before  it  can  become  part  of  the  constitu- 
tion ;  in  some  a  popular  vote  intervenes  between  the  two 
legislative  adoptions  which  must  be  had  before  the  desired 
amendment  is  effected. 

902.  Of  course  the  details  of  these  processes  differ  widely  in  different 
states.  In  Vermont  only  the  senate  can  propose  amendments,  and  it 
only  at  intervals  of  ten  years.  In  Connecticut  amendments  can  be 
originated  only  by  the  house  of  representatives.  Various  restrictions, 
too,  are  in  many  of  the  states  put  upon  the  number  of  clauses  of  the 
constitution  to  which  amendments  can  be  proposed  at  any  single  legis- 
lative session,  the  number  of  times  amendments  may  be  submitted  to 
the  people  within  a  specified  term  of  years,  and  the  method  to  be  fol- 
lowed in  the  popular  vote  when  more  than  one  amendment  is  submitted. 
In  most  states,  too,  special  popular  majorities  are  required  for  the  adop- 
tion of  all  constitutional  changes. 

903,  These  processes  of  amendment  have  been  found  by  no  means 
so  difficult  as  they  seem.  The  habit  of  inserting  in  state  constitutions 
enactments  not  properly  belonging  with  constitutional  provisions,  and 
which  must  be  subject  to  frequent  alteration,  has  of  course  led  to  fre- 
quent appeals  to  the  people  for  purposes  of  amendment,  and  has  served 
to  show  how  easy  amendment  may  be  made.  So  easy  and  normal, 
indeed,  have  appeals  to  the  people  in  state  affairs  become  that  the  con- 
stitution of  New  Hampshire  goes  to  the  length  of  providing  for  the 
submission  to  the  vote  of  the  people  every  seven  years  of  the  question 
whether  or  not  the  state  constitution  shall  be  revised  by  a  convention 
called  for  the  purpose,  while  that  of  Iowa  commands  the  submission 
of  the  same  question  to  the  people  every  ten  years,  that  of  Michigan 
every  sixteen  years  ;  and  the  constitutions  of  New  York,  Ohio,  Virginia, 
and  Maryland  direct  its  submission  every  twenty  years. 

904.  Conflict  of  Laws.  — This  plan  of  leaving  to  the  states 
the  regulation  of  all  that  portion  of  the  law  which  most  nearly 
touches  our  daily  interests,  and  which  in  effect  determines  the 
whole  structure  of  society,  the  whole  organic  action  of  in- 
dustry and  business,  has  some  very  serious  disadvantages : 
disadvantages  which  make  themselves  more  and  more  em- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  493 

phatically  felt  as  modern  tendencies  of  social  and  political 
development  more  and  more  prevail  over  the  old  conservative 
forces.  AVhen  the  Constitution  of  the  Union  was  framed  the 
states  were  practically  very  far  distant  from  one  another.  Dif- 
ficulties of  travel  very  greatly  restricted  intercourse  between 
them  :  being,  so  to  say,  physically  separate,  it  was  no  incon- 
venience that  they  were  also  legally  separate.  But  now  that 
the  railroad  and  the  telegraph  have  made  the  country  small 
both  to  the  traveller  and  to  the  sender  of  messages  the  states 
have  been  in  a  sense  both  geographically  and  socially  fused. 
Above  all,  they  have  been  commercially  fused,  industrially 
knit  together;  state  divisions,  it  turns  out,  are  not  natural 
economic  divisions ;  they  practically  constitute  no  boundaries 
at  all  to  any  distinctly  marked  industrial  regions.  Variety 
and  conflict  of  laws,  consequently,  have  brought  not  a  little 
friction  and  confusion  alike  into  our  social  and  into  our  busi- 
ness arrangements. 

905.  Detrimental  Effects. — At  some  points  this  diversity 
and  multiformity  of  law  almost  fatally  affects  the  deepest  and 
most  abiding  interests  of  the  national  life.  Above  all  things 
else,  it  has  touched  the  marriage  relation,  that  tap-root  of  all 
social  growth,  with  a  deadly  corruption.  Not  only  has  the 
marriage  tie  been  very  greatly  relaxed  in  some  of  the  states, 
while  in  others  it  retains  its  old-time  tightness,  so  that  the 
conservative  rules  which  jealously  guarded  the  family,  as  the 
heart  of  the  state,  promise  amid  the  confusion  to  be  almost 
forgotten ;  but  diversities  between  state  and  state  have  made 
possible  the  most  scandalous  processes  of  collusive  divorce  and 
fraudulent  marriage. 

It  has  become  possible  for  either  party  to  a  marriage  to  go  into 
another  state  and,  without  acquiring  there  even  a  legal  residence,  obtain 
from  its  courts  a  routine  divorce  because  the  other  party  has  not 
answered  a  summons  to  defence  published  only  in  the  state  in  which 
suit  is  instituted  for  divorce  and  therefore  practically  certain  not  to  be 
brought  to  the  notice  of  the  person  for  whom  it  is  intended. 


494       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


Under  such  a  system  a  person  may  be  divorced  without  knowing  it, 
and  it  may  be  possible  for  a  man  to  keep  different  wives,  or  a  woman 
different  husbands,  in  several  states  at  the  same  time. 

906.  In  the  matter  of  taxation  so  great  a  variety  of  law 
obtains  among  the  states  as  to  preclude  in  part  a  normal  and 
healthy  economic  development :  special  taxes  drive  out  certain 
employments  from  some  states,  special  exemptions  artificially 
foster  them  in  others ;  and  in  many  quarters  ill-judged  or  ill- 
adjusted  systems  of  taxation  tend  to  hamper  industry  and 
exclude  capital.  So,  too,  as  to  corporations  diversity  of  state 
law  works  great  confusion  and  partial  disaster  to  the  interests 
of  commerce,  not  only  because  some  states  are  less  careful  in 
their  creation  and  control  of  corporations  than  others,  and  so 
work  harm  to  their  own  citizens,  but  also  because  loosely  in- 
corporated companies  created  by  the  laws  of  one  state  may  do 
business  and  escape  proper  responsibility  in  another  state. 

907.  In  the  criminal  law,  again,  variety  works  social  dam- 
age, tending  to  concentrate  crime  where  laws  are  lax,  and  to 
undermine  by  diffused  percolation  the  very  principles  which 
social  experience  has  established  for  the  control  of  the  vicious 
classes.  So,  too,  in  laws  concerning  debt,  special  exemptions 
or  special  embarrassments  of  procedure  here,  there,  and  every- 
where impair  that  delicate  instrument,  credit,  upon  whose  per- 
fect operation  the  prosperity  of  a  commercial  nation  depends. 

908.  Bankruptcy.  —  One  of  the  most  serious  legal  embarrassments 
at  the  present  time  (1888)  is  the  lack  of  a  national  bankrupt  law. 
Since  the  repeal  of  the  bankrupt  law  of  1867  (1878)  Congress  has 
neglected  to  exercise  its  constitutional  right  to  legislate  on  the  subject 
of  bankruptcy.  The  consequence  is  that,  in  the  absence  of  any  action 
in  the  matter  by  the  states,  the  relations  of  debtor  and  creditor  have 
fallen  into  dire  confusion.  This  is  due,  however,  to  no  fault  of  the 
system,  of  course,  but  only  to  the  neglect  of  Congress. 

909.  Proposals  of  Reform.  —  It  is  in  view  of  such  a  state 
of  affairs,  such  a  multiformity  and  complexity  of  law  touching 
matters  which  ought,  for  the  good  of  the  country,  to  be  uni- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  495 

formly  and  simply  regulated  throughout  the  Union,  that  vari- 
ous extensions  of  the  sphere  of  the  federal  government  have 
been  proposed  by  sanguine  reformers,  who  would  have  all  in- 
terests which  need  for  their  advancement  uniform  rules  of  law 
given  over  to  the  care  of  Congress  by  constitutional  amendment. 

910.  Evils  of  the  Case  easily  exaggerated.  —  Of  course  the 
extent  of  the  legal  friction  and  confusion  complained  of  may 
easily  be  exaggerated.  It  is  in  most  cases  a  confusion  of  detail 
and  of  procedure  rather  than  of  principle  or  substance,  and  has 
more  exasperations  for  the  lawyer  than  for  the  layman.  Un- 
questionably there  is  vastly  more  uniformity  than  diversity. 
All  the  states,  as  I  have  said,  have  built  up  their  law  upon  the 
ancient  and  common  foundation  of  the  Common  Law  of  Eng- 
land, the  new  states  borrowing  their  legislation  in  great  part 
from  the  old.  Nothing  could  afford  clearer  evidence  of  this 
than  the  freedom  with  which,  in  the  courts  of  nearly  every 
state  in  the  Union,  the  decisions  of  the  courts  of  the  other 
states,  and  even  the  decisions  of  the  English  courts,  are  cited 
as  suggestive  or  illustrative,  sometimes  also  as  authoritative, 
precedent.  Everywhere,  for  instance,  the  laws  of  property 
rest  upon  the  same  bases  of  legal  principle,  and  everywhere 
those  laws  have  been  similarly  freed  from  the  burdens  and  in- 
equalities of  the  older  system  from  which  they  have  been 
derived.  Everywhere  there  is  the  same  facility  of  transfer, 
the  same  virtual  abolition  of  all  the  feudal  characteristics  of 
tenure,  the  same  separation  between  the  property  interests  of 
man  and  wife,  the  same  general  rules  as  to  liens  and  other 
claims  on  property,  the  same  principles  of  tenancy,  of  dispo- 
sition by  will,  of  intestate  inheritance,  and  of  dower.  Every- 
where, too,  contracts,  common  carriage,  sales,  negotiable  paper, 
partnership,  rest  upon  similar  principles  of  practically  uni- 
versal recognition.  We  feel  the  conflicts,  because  we  suffer 
under  their  vexations  ;  while  we  fail  to  realize  and  appreciate 
the  uniformities  because  they  are  normal  and  have  come  to 
seem  matters  of  course.    It  must  be  acknowledged,  moreover, 


496       THE  GOVERNIVIENT  OF  THE  UNITED  STATES. 

that  even  within  the  area  of  irritation  there  are  strong  correc- 
tive forces  at  work,  a  growing  moral  sentiment  and  a  healthy 
fashion  of  imitation,  promising  the  initiation  and  propagation 
of  reform.  As  the  country  grows  socially  and  politically,  its 
tendency  is  to  compact,  to  have  a  common  thought  and  common 
practices  :  as  it  compacts,  likenesses  will  be  emphasized,  diver- 
sities pared  and  worn  away. 

911.  Louisiana,  among  the  states,  and  New  Mexico,  among  the  ter- 
ritories, stand  apart  with  a  peculiar  law  of  their  own,  unlike  the  law  of 
the  rest  of  the  states,  because  based  upon  the  civil  law  of  France  and 
Spain,  which  is  tloraan  law  filtered  through  the  histories  of  the  Romance 
nations.  Inevitably,  however,  the  laws  of  these  exceptional  states  have 
approximated  in  some  degree  to  the  legal  systems  of  the  rest  of  the 
Union;  and  they  will  draw  still  closer  to  them  in  the  future. 

912.  Inter-State  Law:  Commerce.  —  In  a  country  being 
thus  compacted,  thus  made  broader. than  its  states  in  its  feel- 
ings and  interests,  thus  turned  away  from  the  merely  local 
enterprise  of  its  early  industrial  history  to  the  national  com- 
merce and  production  of  the  present  generation,  state  lines 
must  coincide  with  the  lines  of  very  few  affairs  which  are 
not  political:  there  must  be  many  calls  for  the  adjusting 
weight  of  an  authority  larger  than  that  of  any  single  state. 
Most  such  interests,  happily,  are  commercial  in  their  nature, 
and  with  the  regulation  of  inter-state  commerce  Congress  has 
always  been  charged.  It  was  to  give  Congress  this  power, 
indeed,  that  the  great  constitutional  convention  was  called: 
inter-state  commerce  was  one  of  the  chief  sources  of  the  alarm- 
ing friction  between  the  states  which  marked  that  time  of  crisis. 
It  is  by  the  operation  of  this  power  that  the  great  railroad 
systems  of  the  country,  and  the  endless  telegraph  lines,  have 
come  under  the  guardianship,  and,  so  far  as  Congress  has 
chosen,  under  the  regulation  of  the  federal  government.  Fed- 
eral law  cannot  touch  agencies  of  commerce  which  lie  wholly 
within  a  single  state ;  but  there  are  nowadays  very  few  such 
agencies,  and  the  jurisdiction  of  Congress  over  commerce. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  497 

where  it  does  exist,  is  exclusive  of  all  interference  by  the 
states.  Federal  law  controls  all  navigable  waters  which  con- 
stitute natural  highways  of  inter-state  traffic  or  intercourse, 
whether  directly  or  only  through  their  connections  ;  it  extends 
to  such  waters,  not  only,  but  also  to  the  control  of  the  means 
by  which  commerce  must  cross  them  in  its  land  passage,  to 
the  construction,  that  is,  of  bridges  over  navigable  waters  for 
the  facilitation  of  land  traffic.  It  excludes  every  state  tax  or 
license  law,  every  state  regulation  whatever,  that  in  any  way 
affects  by  way  of  restriction  or  control  any  movement  of  com- 
merce or  intercourse  between  the  states. 

913.  Posts  and  Telegraphs.  —  Directly  sujiplementary  to 
the  power  of  Congress  over  inter-state  commerce  is  its  power  to 
establish  post-offices  and  post-roads.  This  has  been  interpreted 
to  bestow  upon  Congress  the  right  to  facilitate  telegraphic  inter- 
course between  the  states  by  taking  measui'es  to  break  down 
exclusive  privileges  granted  by  a  state  ;  and  it  must  undoubtedly 
be  taken  as  rounding  out  to  a  perfect  wholeness  the  control 
of  the  general  government  over  the  means  of  communication 
between  state  and  state. 

914.  Of  course,  too,  this  is  a  jurisdiction  which  must  necessarily  ad- 
vance with  lengthening  strides  as  the  movements  of  our  already  vast 
commerce  become  yearly  even  wider  still  and  more  rapid.  It  has  been 
made,  indeed,  to  carry  also  a  promise  even  of  federal  ownership  of  the 
telegraph  system  of  the  country,  and  of  a  very  much  more  extensive 
regulation  of  railway  management  than  has  yet  been  ventured  upon. 
The  most  significant  step  yet  taken  was,  of  course,  the  creation,  in  1887, 
of  an  Inter-state  Commerce  Commission  charged  with  the  prevention  of 
unjust  discriminations  in  railroad  rates  either  for  freight  or  passage. 
This  Commission  has  already  become  one  of  the  most  important  judi- 
cial bodies  of  the  nation,  and  illustrates  a  very  important  experiment 
in  federal  control  (sec.  1120). 

915.  Citizenship. —  Citizenship  in  the  United  States  illus- 
trates the  double  character  of  the  government.  Whoever 
possesses  citizenship  in  this  country  is  a  citizen  both  of  the 
United  States  and  of  the  state  in  v\'hich  he  lives.    He  cannot 


498       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


be  a  citizen  of  the  United  States  alone,  or  only  of  a  state ;  he 
must  be  a  citizen  of  both  or  of  neither  :  the  two  parts  of  his 
citizenship  cannot  be  separated.  The  responsibilities  of  citi- 
zenship, too,  are  both  double  and  direct.  Under  our  federal  sys- 
tem punishment  for  the  violation  of  federal  law  falls  directly 
upon  individuals,  as  does  punishment  for  the  violation  of  state 
law ;  the  obligation  of  obedience  is  in  both  cases  direct :  every 
citizen  must  obey  both  federal  law  and  the  law  of  his  own  state. 
His  citizenship  involves  direct  relations  with  the  authorities 
of  both  parts  of  the  government  of  the  country,  and  connects 
him  as  immediately  with  the  power  of  the  marshals  of  the 
United  States  as  with  the  power  of  the  sheriff  of  his  own 
county. 

916.  The  population  of  the  United  States  is  probably  less  stationary 
in  its  residence  than  the  population  of  any  other  country  in  the  world, 
and  frequent  changes  of  residence  have  led  to  great  facilitations  of  the 
transfer  of  citizenship  from  one  state  to  another,  A  very  brief  term  of 
abode  in  a  new  home  in  another  state  secures  the  privileges  of  citizen- 
ship there :  but  in  transferring  liis  state  citizenship  a  citizen  does  not, 
of  course,  at  all  affect  his  citizenship  of  the  United  States.  The  term 
of  residence  required  for  the  acquirement  of  the  privilege  of  suffrage 
varies  from  three  months  to  two  years  and  a  half,  but  is  in  most  cases 
one  year. 

917.  Elements  of  Confusion.  —  A  very  considerable  amount  of 
obscurity,  it  must  be  admitted,  surrounds  the  question  of  citizenship 
in  the  United  States.  The  laws  of  our  states  have  so  freely  extended 
to  aliens  the  right  to  hold  property,  and  even  the  right  to  vote  after  a 
mere  declaration  of  intention  to  become  naturalized  citizens  (see  sec. 
937),  —  have,  in  brief,  so  freely  endowed  aliens  with  all  the  most  sub- 
stantial and  distinguishing  j^?-/i'/7e^e5  of  citizenship,  — that  it  has  become 
extremely  difficult  to  draw  any  clear  line,  any  distinction  not  merely 
formal,  between  citizens  and  aliens.  Of  course  if  a  person  not  formally 
naturalized  exchanges  residence  in  a  state,  in  which  he  was  allowed  the 
privileges  of  citizenship,  for  residence  in  a  state  in  which  those  privi- 
leges are  denied  him,  he  can  complain  of  no  injustice  or  inequality. 
The  Constitution  of  the  United  States  commands  that  "the  citizens  of 
each  state  shall  be  entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  states";  but  only  federal  law  admits  to  formal  citizen- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  499 


ship,  and  only  formal  citizenship  can  give  to  any  one,  wherever  he  may 
go,  a  right  to  the  privileges  and  immunities  of  citizenship.  The  suf- 
frage in  particular  is  a  privilege  which  each  state  may  grant  upon  terms 
of  its  own  choosing,  provided  only  that  those  terms  be  not  inconsistent 
with  a  republican  form  of  government  (sec.  937). 

918.  Naturalization.  —  Naturalization  is  the  name  given  to 
the  acquirement  of  citizenship  by  an  alien.  The  power  to  pre- 
scribe uniform  rules  of  naturalization  rests  with  Congress  alone, 
by  grant  of  the  Constitution.  The  states  cannot  make  rules 
of  their  own  in  the  matter,  though  they  may,  singularly  and 
inconsistently  enough,  admit  to  the  privileges  of  citizenship 
on  what  terms  they  please  (sec.  937).  The  national  natural- 
ization law  requires  that  the  person  who  wishes  to  become  a 
citizen  must  apply  to  a  court  of  law  in  the  state  or  territory  in 
which  he  desires  to  exercise  the  rights  of  citizenship  for  formal 
papers  declaring  him  a  legal  citizen ;  that  before  receiving  such 
papers  he  must  take  oath  to  be  an  orderly  and  loyal  citizen  and 
renounce  any  title  of  nobility  he  may  have  held ;  and  that  in 
order  to  obtain  such  papers  he  must  have  lived  in  the  United 
States  at  least  five  years,  and  in  the  state  or  territory  in  which 
he  makes  application  at  least  one  year  ;  and  at  least  two  years 
before  his  application  he  must  have  declared  in  court  under 
oath  his  intention  to  become  a  naturalized  citizen. 

It  is  not  necessary  for  a  person  who  came  into  the  United  States  to 
live  three  years  before  coming  of  age  to  make  such  a  sworn  declaration 
of  his  intention  to  become  a  citizen.  If  a  man  who  has  made  sworn 
declaration  in  due  form  of  such  intention  dies  before  taking  out  his 
papers  of  naturalization,  his  widow  and  minor  children  may  become 
citizens  by  merely  taking  the  necessary  oath  of  citizenship  at  the  proper 
time.  The  children  of  persons  who  become  naturalized,  if  they  live  in 
the  United  States,  and  are  under  twenty-one  years  of  age  when  their 
parents  take  the  oath  of  citizenship,  become  citizens  by  virtue  of  the 
naturalization  of  their  parents, 

919.  In  Germany  and  Switzerland,  it  will  be  remembered,  the 
states  individually  admit  to  citizenship  on  their  own  terms,  and  state 
citizenship  carries  with  it  federal  citizenship  (sees.  437,  526).  The 
European  states  have  not,  however,  any  of  the  problems  of  naturaliza- 


500       THE  GOYKRNMENT  OF  THE  UNITED  STATES. 


tion  which  confront  and  confound  us  in  the  United  States.  The  whole 
world  is  not  coming  to  them  as  it  is  coming  to  us. 

920.  Citizenship  under  a  Confederation.  —  The  possession  of  a 
national  naturalization  law  is  one  of  the  practical  political  features 
which  distinguish  our  general  government  from  the  government  of  a 
mere  confederation.  The  states  which  compose  it  are  the  only  '  citizens ' 
of  a  confederation  :  for  the  individual  there  is  no  federal  citizensliip  ; 
and  the  transfer  by  an  individual  of  his  citizenship  from  one  state  to 
another  within  the  confederation  is  as  much  a  mere  matter  of  inter- 
national comity  as  if  the  states  were  not  bound  together  by  any  com- 
mon law. 

921.  Central  Governments  of  the  States.  —  The  governments 
of  the  states  depend  for  their  structure  and  powers,  of  course, 
entirely  upon  written  fundamental  law,  upon  constitutions 
adopted  by  the  people  at  the  suggestion  of  conventions  con- 
sisting of  their  representatives,  —  upon  documents  which  we 
may  call  popular  charters.  It  was,  as  I  have  said,  upon  the 
models  and  precedents  furnished  b}'  the  governments  of  the 
thirteen  original  states  that  the  federal  government  was  con- 
structed, and  this  was  one  of  the  features  copied  :  the  state 
governments,  no  less  distinctly  than  the  federal  government, 
rest  upon  fundamental  law  proceeding  from  an  authority  higher 
than  themselves. 

922.  A  very  great  uniformity  of  structure  is  observable 
among  the  central  governments  of  the  states  in  all  general 
features.  One  of  the  most  obvious  points  of  resemblance  be- 
tween them  is  the  complete  separation  and  perfect  co-ordination 
of  the  three  great  departments  of  governmental  action,  —  the 
legislative,  the  executive  and  the  judicial ;  and  these  are  set 
apart  and  organized  under  the  state  constitutions  with  a  very 
much  greater  particularity  than  characterizes  the  provisions 
of  the  federal  constitution. 

923.  The  State  Legislatures :  Their  Powers.  —The  state 
constitutions  supplement  the  constitution  of  the  Union,  pro- 
viding for  the  exercise  of  all  powers  not  bestowed  by  the  fed- 
eral charter ;  and  the  legislatures  of  the  states  ma.y  be  said,  in 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  501 

general  terms,  to  possess  all  law-making  powers  not  given  to  Con- 
gress. But  this  is  by  no  means  a  complete  statement  of  the  case. 
State  constitutions  contain  strict  limitations  of  power  no  less 
than  does  the  Constitution  of  the  United  States.  Some  powers 
there  are  which  are  altogether  withheld :  they  cannot  under 
our  system  be  exercised  by  any  existing  authority :  they  have 
been  granted  neither  to  Congress  nor  to  the  legislatures  of  the 
states.  Such,  for  example,  is  the  power  to  grant  to  any  person 
or  class  of  persons  exclusive  political  privileges  or  immunities, 
the  power  to  bestow  hereditary  privileges  or  honors,  and  the 
power  to  abridge  in  any  way  the  equal  rights  to  life,  liberty, 
and  property  which  all  our  state  constitutions  are  careful  to  set 
forth  in  more  or  less  elaborate  Bills  of  Eights.  These  may 
safely  be  said,  however,  to  be  powers  which  no  state  legislature 
would  dream  of  exercising,  inasmuch  as  they  would  have  to  be 
exercised,  if  exercised  at  all,  in  the  face  of  a  public  opinion 
which  would  certainly  refuse  re-election  to  any  legislator  who 
should  violate  the  principles  of  republican  government  so 
strenuously  worked  out  in  our  history,  from  Magna  Charta 
down,  and  now  so  warmly  cherished  by  all  classes  of  our  peo- 
ple that  no  denial  of  them  could  stand  upon  our  statute  books 
a  single  twelvemonth.  These  are  merely  limitations  put  upon 
reaction. 

924.  Limitations  of  Length  of  Session,  etc.  —  There  are 
other  limitations,  however,  of  a  very  different  character  con- 
tained in  our  state  constitutions  :  limitations  meant  specially 
to  control  the  action  of  legislatures  within  the  sphere  of  their 
proper  and  undoubted  powers,  and  unquestionably  based  upon 
a  general  distrust  of  the  wisdom,  if  not  of  the  honesty,  of  leg- 
islators. Thus  our  constitutions  very  commonly  forbid  all 
private  or  special  legislation,  confining  legislatures  to  the  pas- 
sage of  general  laws  applying  uniform  rules  to  all  persons 
and  all  cases  alike.  They  limit,  moreover,  in  very  many  cases, 
the  length  and  frequency  of  legislative  sessions,  providing 
that  the  legislature  shall  convene,  for  instance,  only  once  in 


502       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

every  period  of  two  years,  and  shall  continue  its  biennial  ses- 
sion for  not  more  than  a  certain  number  of  days,  except  under 
special  or  exceptional  conditions,  when  extra  sessions  may  be 
called  by  the  governor  or  regular  sessions  extended  by  a  special 
two-thirds  or  three-fifths  vote.  Many  constitutions  contain, 
also,  minute  provisions  concerning  the  conduct  of  legislation, 
forbidding  the  introduction  of  bills  later  than  such  and  such  a 
day  of  a  limited  session,  prescribing  the  general  form  of  bills, 
limiting  their  subject-matter  to  a  single  object  each,  and  even 
commanding  the  manner  of  their  consideration. 

925,  Other  Limitations.  —  More  than  this,  as  we  have  seen, 
there  are  certain  classes  of  legislative  provisions  which  have 
been  removed  beyond  the  cognizance  of  legislatures  by  being 
put  into  the  constitutions  themselves  :  such  as  exemptions  of 
certain  classes  of  property  from  seizure  for  private  debt  (gener- 
ally called  "Homestead  exemptions"),  'prohibition'  provis- 
ions, etc.  The  embodiment  of  such  measures  in  constitutions  is, 
as  I  have  said  (sees.  894,  895),  only  a  means  of  putting  them 
beyond  legislative  interference,  —  is  a  limitation  of  the  same 
indirect  sort  as  a  Bill  of  Rights.  It  is  usual,  also,  for  our 
state  constitutions  to  limit  the  power  of  legislatures  to  create 
corporations,  by  provisions  which  direct  the  passage  of  general 
laws  of  incorporation  to  be  applied  in  a  formal  administrative 
manner  by  the  courts,  to  which  applications  for  incorporation 
are  to  be  made. 

926.  The  period  to  which  the  duration  of  legislative  sessions  is  re- 
stricted varies  from  forty  days  (Colorado,  Georgia)  to  ninety  days 
(Maryland  and  Virginia),  the  most  usual  period  being  sixty  days.  It 
is  noteworthy  that  only  four  of  the  original  thirteen  states  have  put  a 
restriction  upon  the  sessions  of  their  legislatures.  Eight  of  these  thir- 
teen have,  however,  on  the  other  hand,  restricted  either  wholly  or  in 
part  the  power  to  pass  private  or  special  legislation,  —  the  power,  that 
is,  to  make  special  rules  for  special  cases  or  for  particular  individuals. 
It  is  nevertheless  true  that  it  is  in  the  newer  states,  for  the  most  part, 
that  the  strictest  and  most  extensive  limitations  of  legislative  power  are 
to  be  found. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  503 

927.  State  Legislatures  not  Sovereign  Bodies.  —  It  will 
ihus  be  seen  that  our  state  legislatures  are  not  in  any  sense 
'  sovereign '  bodies  :  the  only  sovereign  authority  lies  with  the 
people.  There  is  a  certain  serviceable  clearness  of  view  to  be 
had  by  regarding  the  state  governments  as  corporations :  their 
legislatures  are  law-making  bodies  acting  within  the  gifts  of 
charters,  and  by  these  charters  in  most  cases  very  strictly  cir- 
cumscribed in  their  action.  It  is  this  fact  which  gives  so 
unique  a  place  of  power  under  our  system  to  the  courts,  the 
authoritative  interpreters  of  the  fundamental  law  to  which  all 
legislation  and  all  executive  action  must  conform. 

928.  Legislative  Organization.  —  In  all  the  states  the  legis- 
lature consists  of  two  houses,  a  senate  and  house  of  represen- 
tatives, and  in  most  of  them  the  term  of  senators  is  four  years, 
that  of  representatives  two  years,  one-half  of  the  senate  being 
renewed  every  two  years  at  the  general  elections.  There  is 
no  such  difference  in  character,  however,  between  the  two 
houses  of  the  state  legislatures  as  exists  between  the  Senate 
and  the  House  of  Representatives  of  the  United  States.  Con- 
necticut, as  we  have  seen  (sec.  869),  furnished  the  suggestion 
upon  which  the  framers  of  the  federal  constitution  acted  in 
deciding  upon  the  basis  and  character  of  representation  in  the 
two  federal  houses ;  for  in  the  Connecticut  legislature  of  that 
time  the  senate  represented  the  towns,  as  the  confederate  units 
of  the  state,  while  the  house  represented  the  people  directly. 
Even  Connecticut  has  now  abandoned  this  arrangement,  how- 
ever, and  in  almost  all  the  states  representation  in  both  houses 
is  based  directly  upon  population,  the  only  difference  between 
the  senate  and  house  being  that  the  senate  consists  of  fewer 
members  representing  larger  districts.  Often,  for  instance, 
each  county  of  a  state  is  entitled  to  send  several  representa- 
tives to  the  lower  house  of  the  legislature,  while  several  coun- 
ties are  combined  to  form  a  senatorial  district. 

929.  Reasons  for  Two  Houses  in  State  Legislatures.  —  There 
is,  consequently,  no  such  reason  for  having  two  houses  in  the  states  as 


504       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


exists  in  the  case  of  the  federal  government.  The  object  of  tlie  federal 
arrangement  is  the  representation  of  the  two  elements  upon  which  tlie 
national  government  rests,  namely,  the  popular  will  and  a  federal  union 
of  states.  The  state  legislatures  have  two  houses  simply  for  purposes 
of  deliberateness  in  legislation,  in  order,  that  is,  that  legislation  may 
be  filtered  through  the  debates  of  two  co-ordinate  bodies,  representing 
slightly  differing  constituencies,  though  coming  both  directly  from  the 
people,  and  may  thus  escape  the  taint  of  precipitation  apt  often  to  attach 
to  the  conclusions  of  a  single  all-powerful  popular  chamber.  The  double 
organization  represents  no  principle,  but  only  an  effort  at  prudence. 

930.  The  reason  for  our  having  double  legislatures  cannot,  however, 
be  so  simply  explained.  It  is  compounded  of  both  deliberate  and  his- 
torical elements.  Its  historical  grounds  are  sufficiently  clear :  the  sen- 
ates of  our  states  are  lineal  descendants  of  the  councils  associated  with 
the  colonial  governors,  though  of  course  they  now  represent  a  very  dif- 
ferent principle.  The  colonial  councils  emanated  from  the  executive, 
and  may  be  said  to  have  been  parts  of  the  executive,  wliile  our  senates, 
of  course,  emanate  from  the  people.  Then,  too,  there  was  the  element 
of  deliberate  imitation  of  English  institutions.  One  hundred  years  ago 
England  possessed  the  only  great  free  government  in  the  world;  she 
was,  moreover,  our  mother-land,  and  the  statesmen  who  formed  our  con- 
stitutions at  the  revolution  naturally  adopted  that  English  fashion  of 
legislative  organization  which  has  since  become  the  prevailing  fashion 
among  all  liberalized  governments.  Possibly,  too,  they  were  influenced 
by  more  ancient  example.  The  two  greatest  nations  of  antiquity  had 
had  double  legislatures,  and,  because  such  legislatures  existed  in  an- 
cient as  well  as  in  modern  times,  it  was  believed  that  they  were  the  only 
natural  kind. 

931.  Historical  Precedents.  —  Greeks,  Romans,  and  English  alike, 
of  course,  had  at  first  only  a  single  great  law-making,body,  a  great  sen- 
ate representing  the  elders  or  nobles  of  the  community,  associated  with 
the  king,  and,  because  of  the  power  or  rank  of  its  members,  a  guiding 
authority  in  the  state.  In  all  three  nations  special  historical  processes 
produced  at  length  legislatures  representing  the  people  also;  the  popu- 
lar assemblies  were,  on  one  plan  or  another,  co-ordinated  with  the  aris- 
tocratic assembly,  and  presently  the  plan  of  an  aristocratic  chamber 
and  a  popular  chamber  in  close  association  appeared  in  full  develop- 
ment. We  copied  the  English  chambers  when  they  were  in  this  stage 
of  real  co-ordination ;  before  her  legislature  had  sustained  that  great 
change,  which  Greece  and  Rome  also  had  witnessed,  whereby  all  real 
power  came  to  rest  again  with  a  single  body,  the  popular  assembly. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  505 


932.  Terms  of  Senators  and  Representatives.  — Among  the  older 
states  of  the  union  there  is  a  more  noticeable  variety  of  law  as  to  the 
terms  of  senators  and  representatives  than  is  to  be  found  on  a  compari- 
son of  the  constitutions  of  the  newer  states.  In  Massachusetts  and 
Rhode  Island,  for  instance,  the  term  of  both  senators  and  representa- 
tives is  a  single  year  only.  In  New  Jersey  senators  are  elected  for 
three  years,  one-third  of  the  senate  being  renewed  every  year  at  the 
election  for  representatives,  whose  term  in  New  Jersey  is  but  one  year. 
A  large  number  of  the  states,  however,  both  new  and  old,  limit  the  term 
of  senators  to  two  years,  the  term  of  representatives ;  while  in  Louisi- 
ana representatives  are  given  the  same  term  as  senators,  namely,  four 
years. 

933.  Names  of  the  Houses.  —  There  is  some  variety  among  the 
states  as  regards  the  name  by  which  the  lower  house  of  the  legislature 
is  known.  In  New  York  the  popular  house  is  called  "  the  Assembly  "  ; 
in  Virginia,  the  "  House  of  Delegates  " ;  in  New  Jersey,  the  "  General 
Assembly,"  —  a  name  generally  given  in  most  of  the  states  to  the  two 
houses  taken  together. 

934.  The  qualifications  required  of  senators  and  represen- 
tatives vary  widely  in  the  different  states,  but  not  in  any  essen- 
tial point  of  principle.  It  is  universally  required,  for  example, 
that  members  of  the  legislature  shall  be  citizens;  it  is  very 
generally  required  that  they  shall  be  residents  of  the  states, 
sometimes  that  they  shall  be  residents  of  the  districts,  for 
which  they  are  elected ;  and  it  is  in  almost  all  cases  required 
that  a  member  of  the  legislature  shall  have  reached  a  certain 
age.-  Variety  appears  in  these  provisions  only  in  respect  of 
particulars,  of  details,  as  to  the  length  of  time  citizenship  or 
residence  shall  have  been  acquired  before  election,  the  particu- 
lar age  necessary,  etc. 

The  age  required  varies  in  the  case  of  senators  from  twenty-one  to 
thirty  years,  in  the  case  of  representatives  from  twenty-one  to  twenty- 
five. 

Only  in  Delaware  is  a  property  qualification  prescribed.  In 
that  state  no  one  can  be  a  senator  who  is  not  possessed  of  a 
freehold  estate  of  two  hundred  acres  or  of  personal  or  mixed 
estate  worth  £1000. 


506       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

935.  Legislative  Procedure. — The  same  general  rules  of 
organization  and  procedure  are  observed  in  the  constitution 
and  business  both  of  Congress  and  of  the  state  legislatures. 
The  more  numerous  branch  is  in  all  cases  presided  over  by  an 
officer  of  its  o^vn  election  who  is  called  the  '  Speaker ' ;  the  sen- 
ate sits  under  the  presidency,  generally,  of  a  Lieutenant  Gov- 
ernor, who  occupies  much  the  same  place  in  the  government 
of  the  state  that  the  Vice  President  of  the  United  States 
occupies  in  the  national  government :  he  is  contingent  substi- 
tute for  the  governor. 

936.  Standing  Committees.  —  The  houses  of  the  state  leg- 
islatures, too,  being  separated  from  the  executive  in  such  a 
way  as  to  be  entirely  deprived  of  its  guidance,  depend  upon 
standing  committees  for  the  preliminary  examination,  digestion, 
and  preparation  of  their  business,  and  allow  to  these  commit- 
tees an  almost  unquestioned  command  of  the  time  and  the 
conclusions  of  the  legislature.  The  state  legislatures  of  the 
early  time,  as  I  have  said,  served  as  models  for  Congress ;  they 
and  the  legislatures  of  the  later  states,  made  like  them,  have 
retained  substantially  that  first  plan  of  organization,  following 
the  rules  of  parliamentary  practice  universally  observed  among 
English-speaking  peoples ;  and  they  and  Congress  alike  have 
had  in  the  main  the  same  development :  as  they  have  grown 
larger  they  have  grown  more  dependent  upon  their  advisory 
parts,  their  committees. 

In  several  States  the  constitutions  themselves  command  the  reference 
of  all  bills  to  committees  and  forbid  the  passage  of  any  measure  which 
has  not  been  referred  and  reported  upon. 

937.  The  Suffrage.  —  The  suffrage  is  in  all  the  states  given 
by  constitutional  provision  to  male  citizens  twenty-one  years 
of  age ;  but  it  does  not  in  all  the  states  stop  there.  Many 
of  the  states  extend  the  privilege  of  voting  also  to  every 
male  resident  of  foreign  birth  who  is  twenty-one  years  of  age 
and  has  declared  h^  intention  to  become  a  naturalized  citizen ; 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  507 

and  ten  states  grant  it  to  every  male  citizen  or  •  inhabitajit ' 
of  voting  age.  The  laws  of  almost  all  the  states  require  resi- 
dence in  the  state  for  a  certain  length  of  time  previous  to  the 
election  in  which  the  privilege  is  sought  to  be  exercised  (the 
period  varies  all  the  way  from  three  months  to  two  years  and 
a  half),  as  a  condition  precedent  to  voting;  most  require  a 
certain  length  of  residence  in  the  county  also  where  the  privi- 
lege is  to  be  exercised;  some  a  certain  length  of  residence  in 
the  voting  precinct.  Many  states  require  all  voters  to  have 
paid  certain  taxes;  but  no  state  has  a  property  qualification 
properly  so-called. 

938.  In  Connecticut  and  Massachusetts  the  suffrage  is  confined  to 
those  who  can  read  the  laws  of  the  state.  It  is  common,  of  course, 
throughout  the  country  to  exclude  criminals,  insane  persons,  idiots,  and 
in  several  states  the  privilege  is  witliheld  from  those  who  bet  on  elec- 
tions. In  Florida  betting  on  an  election  not  only  excludes  from  the 
election  in  connection  with  which  the  offence  is  committed,  but  is  pun- 
ished, upon  conviction,  by  entire  and  permanent  disfranchisement.  A 
number  of  states  also  shut  out  duellists. 

939.  The  privilege  of  voting  in  school  elections  is  given  to  women  in 
Massachusetts,  Minnesota,  and  Colorado,  though  the  constitutions  of 
all  the  states  without  exception  declare  the  suffrage  to  be  restricted,  in 
general,  to  males.  In  the  three  territories  of  Washington,^  Wyoming, 
and  Utah,  women  are  allowed  to  vote  in  all  elections.  In  Kansas  they 
have  the  elective  franchise  in  municipal  elections. 

940.  The  State  Courts.  —  A  very  great  variety  of  course 
exists  among  the  laws  of  the  several  states  regarding  the  con- 
stitution, functions,  and  relative  subordination  of  the  courts. 
A  general  sketch  of  the  state  courts  must,  therefore,  be  made 
in  very  broad  outline.  Perhaps  in  this  department  of  state 
law,  as  in  others,  there  may  be  said  to  be,  despite  a  bewildering 
variety  of  detail,  sufficient  unity  of  general  feature  to  warrant 
a  generalized  description,  and  to  render  unnecessary  the  unsat- 
isfactory expedient  of  choosing  the  institutions  of  a  single 

1  Washington  Territory  became  a  state  July  1,  1889,  being  admitted 
along  with  Montana,  North  Dakota,  and  South  Dakota. 


508       THE  GOVEllNMENT  OF  THE  UNITED  STATES. 


state  as  in  some  broad  sense  typical,  and  describing  them 
alone. 

941.  The  courts  of  our  states  are  in  no  sense  organs  of  fed- 
eral justice,  as  the  courts  of  the  German  states  are  (sec.  436)  ; 
they  have  an  entirely  independent  standing  and  organization 
and  an  entirely  independent  jurisdiction.  Their  constitution 
and  procedure  are  in  no  way  affected  by  federal  law,  —  except 
of  course  by  way  of  limitation ;  —  their  sphere  is  a  sphere 
apart.  The  series  of  courts  in  each  state,  therefore,  is  com- 
plete :  every  state  has  its  supreme  court,  as  well  as  its  inferior 
tribunals,  and  appeals  lie  from  the  state  courts  to  the  courts  of 
the  United  Stat^  only  in  cases  involving  federal  law  or  in 
cases  where  the  character  of  the  parties  to  the  suit  does  not 
give  any  state  court  complete  jurisdiction  (sees.  888,  1082, 
1083). 

942.  One  of  the  most  characteristic  features  of  our  state 
courts  is  what  I  may  call  their  local  attachment.  In  most  cases 
the  judges  are  not  appointed  by  any  central  authority  but  are 
elected  by  the  voters  of  the  district  or  circuit  in  which  they 
hold  court :  they,  like  members  of  legislatures,  may  be  said 
to  have  '  constituents.'  Their  responsibility  is  thus  chiefly  a 
responsibility  to  the  electors,  a  popular  rather  than  ofiicial 
responsibility.  The  courts  are  held  together  in  a  common 
system  and  to  a  common  duty  by  law,  therefore,  not  by  disci- 
pline or  official  subordination  to  superior  judicial  authorities. 
The  courts  may  be  said  to  be  local  rather  than  central  organs ; 
they  are  integrated  only  by  the  course  of  appeal,  by  the 
appellate  authority  of  the  higher  over  the  lower  courts  in 
points  of  law. 

943.  This  localization  of  the  organs  of  government,  in  their  origin  as 
well  as  in  their  functions,  is  a  general  characteristic  of  American  polit- 
ical organization, —  a  characteristic  which  appears  most  conspicuously 
in  the  arrangements  of  local  government,  which  is,  as  we  shall  see,  not 
so  much  organized  as  left  to  organize  itself  under  general  statutes  for 
whose  enforcement  no  central  machinery  is  provided. 


THE  GOVEPwNMENT  OF  THE  UNITED  STATES.  509 


944.  Common  Law  Courts.  —  There  are,  usually,  four 
grades  of  jurisdiction  in  the  judicial  systems  of  the  states,  with 
four  grades  of  courts  corresponding.    There  are  generally  (1) 

*  Justices  of  the  Peace,  who  have  jurisdiction  over  all  petty  police 
offences  and  over  civil  suits  for  trifling  sums ;  who  conduct 
preliminary  hearings  in  cases  of  grave  criminal  offence,  com- 
mitting the  accused,  when  there  is  prima  facie  proof  of  guilt, 
for  trial  by  a  higher  court ;  and  who  are,  in  general  terms,  con- 
servators of  the  peace.  They  act  separately  and  have  quite 
lost  the  high  judicial  estate  which  still  belongs  to  the  English 
Justices,  from  whom  they  take  their  name.  Their  decisions 
are  in  almost  all  cases  subject  to  appeals  to  higher  courts. 

Mayor's  courts  in  the  towns  are  generally  the  same  in  rank  and  juris- 
diction, so  far  as  criminal  cases  are  concerned,  as  the  courts  of  Justices 
of  the  Peace. 

945.  (2)  County  or  Municipal  Courts,  which  hear  appeals 
from  Justices  of  the  Peace  and  from  Mayor's  courts,  and 
whose  own  original  jurisdiction  is  one  step  higher  than  that  of 
the  Justices,  including  civil  cases  involving  considerable  sums, 
and  criminal  cases  generally  not  of  the  gravest  character. 

Often,  however,  courts  of  this  grade,  especially  the  municipal  courts 
of  the  larger  towns,  are  given  a  much  higher  jurisdiction  and  are  co- 
ordinated in  some  respects  with  courts  of  the  next  higher  grade,  the 
Superior  Courts. 

In  New  York,  New  Jersey,  and  Kentiicky  the  county  courts  retain 
the  English  name  of  Quarter  Sessions. 

946.  (3)  Superior  Courts,  which  hear  appeals  from  the 
county  and  municipal  courts,  and  generally  from  all  inferior 
courts,  and  which  are  themselves  courts  of  high  original  juris- 
diction of  the  most  general  character  in  both  civil  and  criminal 
cases.  They  may  be  said  to  be  the  general  courts  which  give 
to  the  courts  of  lower  grade  their  name  of  ^  inferior.'  County 
and  municipal  courts,  as  their  names  imply,  sit  only  for  certain 
small  districts;  but  the  districts  over  which  superior  courts 
have  jurisdiction  usually  cover  a  wide  area,  necessitating  the 


510       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

sitting  of  each  sucli  court  in  several  places  in  succession.  In 
other  words,  superior  courts  are  generally  circuit  courts,  as 
in  many  states  they  are  called. 

*  Circuit  courts '  is,  indeed,  the  most  generally  used  name  for  courts 
of  this  grade,  that  is,  for  the  principal  courts  of  the  state  ;  though  in 
almost  as  many  states  they  are  called  '  district  courts.'  In  most  of  the 
states  tliese  courts  have,  of  course,  special  judges  of  their  own;  but  in 
Maine  and  New  Hampshire  they  are  held  by  the  judges  of  the  supreme 
court  on  circuit. 

947.  In  some  states  civil  is  separated  from  criminal  jurisdiction  in 
this  grade,  and  distinct  courts  are  created  for  each.  Thus  in  New  York 
there  are  Circuit  courts  which  hear  civil  causes  and  courts  of  Oyer  and 
Terminer,  immediately  subordinated  to  a  court  of  General  Sessions,  for 
the  hearing  of  criminal  cases  ;  and  in  Texas  there  are  District  courts  for 
civil  causes.  District  Criminal  courts  for  criminal  cases.  In  Pennsyl- 
vania courts  of  Quarter  Sessions  are  the  courts  of  general  criminal  juris- 
diction, as  in  England,  civil  causes  going  to  the  courts  of  Common  Pleas. 
Delaware  has  criminal  courts  called  courts  of  Gaol  Delivery. 

948.  (4)  Supreme  Courts,  which  in  most  of  the  states  have 
no  original  jurisdiction  at  all,  but  only  appellate  jurisdiction, 
hearing  appeals  in  all  classes  of  cases  (except  such  as  involve 
only  trifling  offences  or  small  sums  of  money)  from  the  supe- 
rior courts  and  from  various  inferior  courts. 

949.  (5)  In  five  states  there  are  supremest  courts  above  the  *  supreme.* 
Thus  in  New  York  a  Court  of  Appeals  revises  errors  made  in  certain 
cases  by  the  supreme  court ;  in  New  Jersey  there  is  a  supreme  court 
above  the  circuit,  which  is  itself  of  high  appellate  jurisdiction,  and  a 
Court  of  Errors  and  Appeals  above  the  supreme ;  in  Louisiana  the 
order  is  reversed  and  there  is  a  supreme  court  above  a  court  of  ap- 
peals;  in  Illinois  a  supreme  court  above  certain  district  "appellate 
courts  " ;  and  in  Kentucky  a  court  of  appeals  above  a  supreme  court 
which  is  called  '  superior '  simply.  In  Texas  there  are  two  co-ordinate 
supreme  courts :  one,  called  the  supreme,  for  the  hearing  of  civil  cases 
only,  the  other,  called  the  court  of  appeals,  for  the  hearing  of  criminal 
cases  and  of  civil  cases  brought  up  from  the  county  courts. 

950.  Decisions  rendered  by  the  supreme  court  of  the  District  of  Co- 
lumbia arc  subject  to  revision  by  the  supreme  court  of  the  United  States. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  511 

951.  The  name  'court  of  appeals'  is  found  also  in  Maryland,  Vir- 
ginia, and  West  Virginia. 

952.  In  five  of  the  original  states  (New  Hampshire,  Massachusetts, 
Rhode  Island,  New  York,  New  Jersey),  and  in  Maine,  the  supreme  courts 
have,  anomalously  enough,  original  as  well  as  appellate  jurisdiction  in  all 
cases ;  but  in  the  newer  states  such  an  arrangement  is  never  found. 

953.  In  several  of  the  larger  cities  of  the  country  there  are  complete 
sets  of  courts,  reproducing  the  state  judiciary  in  small.  Thus  in  Balti- 
more, for  example,  there  are  city  courts  from  the  lowest  grade  up  to  a 
"  Supreme  Bench  of  Baltimore  City." 

954.  Courts  of  Equity.  —  "  Equity  "  is  defined,  under  the 
legal  systems  of  England  and  the  United  States,  as  "  that  por- 
tion of  remedial  justice  which  is  exclusively  administered  by 
a  court  of  equity,  as  contradistinguished  from  that  portion  of 
remedial  justice  which  is  exclusively  administered  by  a  court 
of  common  law  "  (Story).  In  other  words,  it  is  that  portion 
of  remedial  justice  which  was  administered  in  England  by  the 
Chancellors,  who  were  '  the  keepers  of  the  king's  conscience,' 
and  from  whose  court,  as  if  from  the  king's  sense  of  justice, 
there  issued  writs  from  time  to  time  for  the  remedy  of  wrongs 
for  which  the  common  law  made  no  adequate  provision  (sees. 
666,  1189,  1190).  The  early  Chancellors  were  ecclesiastics 
imbued  with  Roman  law  as  it  had  come  down  through  the 
medium  of  the  canon  law,  and  both  in  their  hands  and  in  those 
of  their  lay  successors  of  later  times,  who  were  the  heirs  of 
their  principles  and  prerogatives,  equity  law  and  procedure 
became  a  very  different  thing  from  the  law  and  procedure  of 
the  common  law  courts  (sec.  956). 

955.  Fusion  of  Law  and  Equity.  —  As  time  has  gone  on 
equity  and  law  have  been  largely  fused,  even  in  England,  just 
as  the  jus  gentium  and  the  jus  civile  became  merged  in  the 
development  of  the  Roman  law  (sees.  206,  208,  212,  216)  ;  and 
in  most  of  the  states  of  the  Union  the  same  courts  exercise 
both  equitable  and  common  law  jurisdiction.  In  several  states 
the  whole  procedure,  even,  in  both  jurisdictions  has  been  made 
practically   identical,  and  law  is  not   distinguishable  from 


512       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

equity.  Generally,  however,  the  distinctive  procedure  has 
been  preserved,  and  only  courts  of  the  superior  and  supreme 
grades  have  been  given  equitable  jurisdiction, — jurisdiction, 
that  is,  over  cases  in  which  the  remedy  is  equitable.  In 
Alabama,  Delaware,  Michigan,  Mississippi,  New  Jersey,  Ten- 
nessee, and  Vermont  there  are  still  special  chancery  courts. 

956.  Equity  processes  of  trial  differ  from  common  law  processes, 
outwardly,  chiefly  in  the  fact  that  the  testimony  is  written  instead  of 
oral,  and  that  decisions  of  fact  as  well  as  of  law  rest  with  the  judge 
instead  of  with  a  jury.  For  its  special  subject-matter  equity  jurisdic- 
tion generally  embraces  such  matters  as  trusts,  mistakes,  frauds,  etc.  — 
matters  hardly  tangible  by  ordinary  remedies. 

957.  Probate  Courts.  —  In  most  of  the  states  there  are  spe- 
cial probate  courts,  —  special  courts,  that  is,  charged  with  juris- 
diction over  the  proof  of  wills,  the  administration  of  estates, 
the  appointment  of  guardians,  administrators,  etc.,  the  care  of 
the  estates  of  wards,  and,  in  general  of  the  proper  disposition 
of  the  property  of  persons  deceased.  In  many  states,  however, 
these  functions  are  left  to  the  ordinary  courts  of  law. 

958.  In  England  this  probate  jurisdiction  was,  from  the  first  until  a 
very  recent  date,  a  prerogative  of  the  ecclesiastical  courts,  and  in  two 
of  our  states  the  probate  courts  retain  the  names  of  the  officers  who 
exercised  this  function  in  the  place  of  the  bishop :  in  Georgia  the  court 
is  called  the  court  of  the  '  Ordinary,'  in  New  York  the  *  Surrogate's ' 
court.  In  New  Jersey,  with  a  reminiscence  of  the  same  origin,  it  is 
called  the  *  Prerogative '  court.  In  several  states,  on  the  other  hand, 
it  is  known,  by  virtue  of  one  side  of  its  function,  as  the  *  Orphan's ' 
court. 

959.  Judges. — The  judges  of  most  of  the  state  courts  are 
elected,  generally  by  the  people,  in  a  few  cases  by  the  legisla- 
ture ;  only  in  Delaware  are  they  appointed  by  the  governor, 
though  in  several  states  they  are  nominated  by  the  governor  and 
appointed  by  and  with  the  advice  and  consent  of  the  Senate. 

Supreme  court  judges  are  usually  elected  by  the  people  of  the  state 
at  large  ;  circuit,  district,  county,  municipal,  and  other  judges  by  the 
electors  of  the  area  in  which  they  serve. 


THE  (JOVEKNMENT  OF  THE  UNITED  STATES.  513 


The  terms  of  judges  range  all  the  way  from  two  years  to  a 
tenure  during  good  behavior. 

960.  In  New  Hampshire,  Delaware,  and  Massachusetts  all  judges  of 
the  higher  courts  hold  during  good  behavior;  and  in  Rhode  Island,  and 
the  District  of  Columbia  also,  judges  of  the  supreme  court  have  a  like 
life  tenure. 

Of  course  the  length  of  the  term  varies  with  the  grade  of  the  court,  the 
tendency  being  to  give  longer  terms  to  the  judges  of  the  higher  courts. 

961.  The  qualifications  required  of  judges  by  state  law  are 
not  stringent.  Only  some  eight  or  nine  of  the  states  require 
by  law  any  identification  of  their  judges  with  the  legal  profes- 
sion ;  and  only  six  require  '  learning  in  the  law ' ;  though  of 
course,  custom  and  public  opinion  generally  confine  the  choice 
of  judges  to  professional  lawyers.  Generally  a  certain  age  is 
required  of  judges  (varying,  where  there  is  such  a  requirement, 
from  twenty-five  to  thirty-five  years),  besides,  in  most  cases, 
citizenship  and  residence  in  the  state  or  circuit. 

As  a  rule  single  judges  hold  all  the  courts  except  the  highest. 
Supreme  courts  have  a  more  or  less  numerous  '  bench.' 

962.  The  ministerial  officers  of  the  state  courts,  the  sheriffs, 
are  generally  not  appointed  by  the  judges  or  responsible  to 
them,  but  elected  by  the  people  and  answerable  to  'constit- 
uents,' just  as  the  judges  themselves  are.  Even  the  clerks  of 
the  courts  are  often  elected. 

968.  The  position  of  sheriff  thus  differs  very  materially  from  the 
position  of  a  United  States  marshal  (sec.  1091),  the  sheriff's  counterpart 
in  the  federal  judicial  system.  The  marshal  is  appointed  by  the  Presi- 
dent of  the  United  States,  and  is  responsible  to  a  central  authority,  is 
part  of  a  centralized  organization  of  justice.  The  sheriff,  on  the  con- 
trary, is  the  organ  of  an  extremely  decentralized,  an  almost  disinte- 
grated, organization  of  justice. 

The  bailiffs,  the  sheriff's  deputies,  are  usually  the  appointees  of  the 
sheriff. 

964.  The  State  Executives.  —  The  Executives  of  the  states 
are  the  least  distinct  parts  of  state  organization,  the  least  sus- 


514       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

ceptible  of  being  adequately  pictured  in  outline,  or  indeed  in 
any  broad  and  general  way.  Under  our  system  of  state  law 
the  executive  officers  of  a  state  government  are  neither  the 
servants  of  the  legislature,  as  in  Switzerland,  nor  the  responsi- 
ble guides  of  the  legislature,  as  in  England,  nor  the  real  con- 
trolling authority  in  the  execution  of  the  laws,  as  under  our 
own  federal  system.  The  Executive  of  a  state  has  an  impor- 
tant representative  place,  as  a  type  of  the  state's  legal  unity ; 
it  has  a  weighty  function  of  superintendence,  is  the  fountain 
of  information,  the  centre  and  source  of  advice,  the  highest 
organ  of  administration  to  the  general  eye ;  but  it  cannot  be 
said  to  have  any  place  or  function  of  guiding  power.  Execu- 
tive power  is  diffused  by  our  law  throughout  the  local  organs 
of  government ;  only  a  certain  formal  superintendence  remains 
with  the  authorities  at  the  state  capitals. 

Of  course  this  does  not  apply  to  the  governor's  veto  power,  —  that 
contains  real  energy,  —  but  only  to  executive  functions  proper;  these 
are  localized,  not  centralized,  after  the  extremest  pattern. 

965.  Not  all  of  the  states  have  the  same  central  executive 
officers.  All,  of  course,  have  governors  ;  twenty-seven  have 
lieutenant  governors ;  all  have  secretaries  of  state ;  all  have 
treasurers  ;  almost  all  have  attorneys-general ;  and  a  majority, 
superintendents  of  education.  Many  have  also  auditors ;  eleven 
have  comptrollers,  and  eleven  boards  of  education ;  three  (Mas- 
sachusetts, New  Hampshire,  Maine)  associate  councils  with 
their  governors. 

966,  For  the  rest,  there  are  minor  officers  of  various  functions  in  the 
different  states ;  superintendents  of  prisons,  for  instance,  registrars  of 
land  offices,  superintendents  of  labor,  bureaux  of  agriculture,  commis- 
sioners of  mines,  commissioners  of  immigration,  etc.  There  is,  of 
course,  no  uniformity  between  the  administrations  of  the  states  as 
regards  these  special  offices ;  different  states  undertake  different  func- 
tions, new  or  old,  and  create  new,  or  revive  old,  offices  accordingly. 

967.  The  governor's  term  of  office  is  in  almost  all  of  the 
states  either  two  or  four  years,  although  Massachusetts  and 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  515 


Ehode  Island  give  their  governors  a  term  of  but  a  single  year, 
while  New  York  and  New  Jersey  elect  theirs  for  three.  The 
lieutenant-governor,  where  such  an  officer  is  elected,  has  the 
same  term  as  the  governor,  and  is  generally  required  to  have 
the  same  qualifications. 

9G8.  These  qualifications  consist,  almost  always,  of  citizen- 
ship of  from  two  to  twenty  years  standing,  residence  within 
the  state  of  from  one  to  ten  years,  and  age  of  from  twenty-five 
to  thirty  years. 

In  Maine  it  is  required  that  the  governor  shall  be  a  native-horn  citi- 
zen. Massachusetts  imposes  upon  candidates  for  her  governor's  chair 
a  property  qualification,  namely,  the  possession  in  his  own  right  of 
freehold  property  lying  within  the  state,  and  worth  £  1000. 

969.  The  terms  of  the  other  principal  state  officers  are 

usually  the  same  as  the  term  of  the  governor,  though  it  is  not 
uncommon  to  give  to  treasurers,  secretaries  of  state,  attorneys- 
general,  and  auditors  a  longer  tenure.  The  qualifications  re- 
quired of  the  different  officers  are  of  course  of  the  most  various 
nature. 

In  New  York,  though  the  governor  and  lieutenant-governor  hold  for 
three  years,  the  other  officers  of  state  are  given  terms  of  only  two 
years. 

970.  The  constitutions  of  many  of  the  states  still  exhibit  the  jealousy 
of  long  terms  of  office  which  was  so  characteristic  of  the  extreme  demo- 
cratic feeling  generated  in  the  colonies  by  the  constant  friction  between 
the  representatives  of  the  people  and  officials  who  owed  their  offices, 
not  to  election,  but  to  royal  appointment.  The  constitution  of  Missis- 
sippi forbids  the  holding  of  any  office  for  life  or  during  good  behavior  ; 
seven  states  limit  official  tenure  to  a  maximum  period  of  seven  years ; 
Texas  makes  two  years  the  maximum  ;  and  Massachusetts,  Virginia, 
and  Maryland  give  express  constitutional  sanction  to  rotation  in  office. 

971.  Many  states  effect  such  a  limitation  with  reference  to  the  tenure 
of  the  governor's  office  by  provisions  setting  bounds  to  the  re-eligibility 
of  the  governor.  Thus  some  exclude  their  governors  from  successive 
terms ;  others  allow  only  a  single  term  to  any  one  man  within  a  specific 
period  of,  say,  eight  years ;  while  still  others  withhold  re-eligibility 
altogether. 


516       THE  rrOVERX:MENT  OF  THE  UNITED  STATES. 

972.  Contrast  between  State  and  Federal  Executives.  — 

The  federal  executive  was,  as  we  have  seen  (sec.  869),  consti- 
tuted in  quite  close  accordance  with  the  models  of  previous 
state  organization;  but  the  imitation  can  scaxcely  be  said  to 
have  gone  further  than  the  adoption  of  the  suggestion  that  the 
United  States  should  have  a  single  governmental  head,  a  presi- 
dent, because  the  states  had  tried  and  approved  a  single  presi- 
dency. For  the  rest,  the  president  was  given  the  character, 
as  regards  his  relations  with  the  other  officials  of  the  federal 
system,  rather  of  an  English  sovereign  than  of  a  state  governor. 
Certainly  the  contrast  between  the  official  place  and  power  of 
the  president  and  the  place  and  power  of  the  state  governors 
of  the  present  day  is  a  very  sharp  and  far-reaching  contrast 
indeed.  The  president  of  the  United  States  is  the  only  exec- 
utive officer  of  the  federal  government  who  is  elected;  all 
other  federal  officials  are  appointed  by  him,  and  are  responsible 
to  him.  Even  the  chief  of  them  bear  to  him,  in  theory  at 
least,  only  the  relation  of  advisers ;  though  in  fact,  it  must  be 
acknowledged,  they  are  in  effect  his  colleagues.  Of  state  offi- 
cials associated  with  the  governor  it  may,  on  the  other  hand,  be 
said  that  both  in  law  and  in  fact  they  are  colleagues  of  the  gov- 
ernor, in  no  sense  his  agents  or  subordinates,  except  perhaps 
in  mere  formal  precedence.  They,  like  himself,  are  elected  by 
the  people  ;  he  is  in  no  way  concerned  in  their  choice.  Xor  do 
they  serve  him  after  election.  They  are  not  given  him  as 
advisers  ;  they  are,  on  the  contrary,  co-ordinated  with  him. 
Xorth  Carolina,  indeed,  calls  her  chief  officers  of  state  a  '  cabi- 
net ' ;  but  they  are  not  dependent  upon  each  other  even  in 
counsel,  and  they  are  quite  as  independent  of  the  governor  as 
Congress  is  of  the  president.  The  only  means  of  removal  to 
which  the  principal  officers  of  the  states  are  subject  is,  ordi- 
narily, impeachment ,  to  which  the  governor  also  is  equally 
exposed.  Both  they  and  he  may  be  charged  with  official 
crimes  and  misdemeanors  by  the  house  of  representatives  and 
tried,  convicted,  and  removed  by  the  senate  of  the  state.  Their 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  517 


only  other  responsibility  is  to  the  courts  of  law,  to  which,  like 
any  other  citizens,  they  are  answerable,  after  removal  from 
office,  for  actual  breaches  of  law.  Governor,  treasurer,  secre- 
tary of  state,  attorney-general,  —  all  state  officers  alike,  serve, 
not  other  officers,  but  the  people,  who  elected  them  ;  upon  the 
people  they  are  dependent,  not  upon  each  other  ;  they  consti- 
tute no  hierarchy,  but  stand  upon  a  perfect  equality. 

973.  In  Delaware,  Kentucky,  Maryland,  New  Jersey,  Pennsylvania, 
West  Virginia,  and  Texas,  the  secretaries  of  state  are  appointed  by  the 
governor,  subject  to  confirmation  by  the  senate ;  in  several  states  the 
attorney-general  also  is  appointed;  nor  is  it  uncommon  for  the  state 
superintendent  of  education  to  be  an  appointee  of  the  governor:  and 
these  facts  offer  apparent  contradiction  to  the  statement  that  the  several 
constituent  parts  of  the  state  executives  stand  always  apart  in  complete 
independence  and  co-ordination,  —  especially  when  it  is  added  that  in 
one  or  two  states  officers  so  important  as  the  secretary  of  state  and  the 
attorney-general  hold  during  the  pleasure  of  the  governor.  But  these  cases 
constitute  in  fact  no  real  exceptions  :  for  the  duties  of  such  officers,  after 
their  appointment,  are  prescribed  by  constitutional  provision  or  by  stat- 
ute, not  by  the  governor ;  and  the  governor  may  remove  them,  not  at 
his  whim,  but  for  just  legal  cause  only.  In  brief,  though  appointed  by 
him,  they  do  not  depend  upon  him. 

974.  Real  Character  of  a  State  <  Executive.* — The  gover- 
nor therefore,  is  not  the  '  Executive  ' ;  he  is  but  a  single  piece 
of  the  executive.  There  are  other  pieces  co-ordinated  with 
him  over  which  he  has  no  direct  official  control,  an  l  which  are 
of  less  dignity  than  he,  only  because  they  have  no  power  to 
control  legislation,  as  he  may  do  by  the  exercise  of  his  veto, 
and  because  his  position  is  more  representative,  perhaps,  of 
the  state  government  as  a  whole,  of  the  people  of  the  state  as 
a  unit.  Indeed  it  may  be  doubted  whether  the  governor  and 
other  principal  officers  of  a  state  government  can  even  when 
taken  together  be  correctly  described  as  '  the  executive,'  since 
the  actual  execution  of  the  laws  does  not  rest  with  them  but 
with  the  local  officers  chosen  by  the  towns  and  counties  and 
bound  to  the  central  authorities  of  the  state  by  no  real  bonds 


518       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

of  responsibility  whatever.  Throughout  all  the  states  there  is 
a  significant  distinction,  a  real  separation,  between  '  state  '  and 
'  local '  officials  ;  local  officials  are  not  regarded,  that  is,  as  state 
officers,  but  as  officers  of  their  districts  only,  responsible  to 
constituents,  not  to  central  authorities.  In  all  the  states, 
probably  without  exception,  the  sheriffs  and  other  county  offi- 
cers, the  county  treasurers,  clerks,  surveyors,  commissioners, 
etc.,  and  the  town  and  city  officials  also,  as  well  as  the  judges 
of  the  courts  and  the  solicitors  or  district  attorneys  who  repre- 
sent the  public  authority  before  the  courts,  are  chosen  by  the 
voters  of  limited  areas,  and  are  regarded,  for  the  most  part,  as 
serving,  not  the  state,  but  their  part  of  the  state.  Minor  ^  state ' 
officers  there  are,  —  minor  officers,  that  is,  who  serve  ministe- 
rially the  central  offices,  —  and  these  are  often  appointed  by 
the  governor ;  but  it  is  exceptional  for  the  governor  to  control 
in  any  real  sense  the  officials,  the  local  authorities,  by  whom  the 
laws  are  in  fact  put  into  actual  operation.  The  president  of 
the  United  States  is  the  veritable  chief  and  master  of  the  offi- 
cial forces  of  the  federal  government ;  he  appoints  and  in  most 
cases  can  remove,  for  cause,  all  federal  marshals,  district  attor- 
neys, revenue  officers,  post-office  officials.  But  the  governor  of 
a  state  occupies  no  such  position ;  nor  does  any  high  '  state ' 
official;  the  central  offices  of  a  state  constitute  a  system  of 
supervision  and  report  often,  but  seldom  a  system  of  control. 

975.  In  Michigan,  it  is  true,  all  oflacials  not  legislative  or  judicial  may 
be  removed  by  the  governor  for  just  legal  cause ;  in  New  York,  too, 
sheriffs,  coroners,  district  attorneys,  and  county  clerks  are  removable 
by  the  same  authority,  and  in  Wisconsin  sheriffs,  coroners,  district 
attorneys,  and  registrars  of  deeds ;  but  such  provisions  are  exceptional, 
and  are  not  accompanied  by  any  real  integration  of  local  government 
by  a  system  of  continuous  central  control.  Government  remains  dis- 
jointed,—  still  lies  in  separated  parts. 

976.  Relations  of  the  Local  to  the  Central  Organs  of  Govern- 
ment in  the  States.  —  It  is  characteristic  of  our  state  organization, 
therefore,  that  the  counties,  townships,  and  cities  into  which  the  states 
are  divided  for  purposes  of  local  government  do  not  serve  as  organs  of  the 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  519 


states  exactly,  but  rather  as  independent  organisms,  constituted  what  they 
are  by  state  law,  indeed,  but  after  being  set  up,  left  to  themselves  almost 
as  entirely  as  if  they  were  self-constituted.  They  elect  their  own  officers 
and  go  their  own  paces  in  enforcing  the  general  laws  of  the  state. 

977.  We  have  not,  therefore,  local  ^self-government,'  in  the  sense  in 
which  Professor  Gneist  has  found  that  term  to  be  properly  used  when 
employed  in  the  light  of  its  Teutonic  history ;  we  have,  instead,  separate 
local  self-direction  which  is  not  the  application  of  government,  but  the 
play  of  independent  action.  Our  local  areas  are  not  governed,  in  brief; 
they  act  for  themselves.  Self-government  implies,  when  used  in  its 
strict  historical  meaning,  that  the  officers  of  local  administration  are 
officers  of  the  state,  of  the  central  authority,  whatever  may  be  the 
machinery  of  their  appointment,  and  that  their  responsibility  is  central, 
not  to  their  neighbors  merely.  The  only  sense  in  which  the  local  units 
of  our  state  organization  are  governed  at  all  is  this,  that  they  act  under 
general  laws  which  are  made,  not  by  themselves,  but  by  the  central 
legislatures  of  the  states.  These  laws  are  not  executed  by  the  central  ex- 
ecutive authorities,  or  under  their  control,  but  only  by  local  authorities 
acting  in  semi-independence.  They  are,  so  to  say,  left  to  run  themselves. 

978.  The  Governor. — The  usual  duties  of  a  state  governor 
may  be  conveniently  summed  up  under  four  general  heads : 

(1)  ,  as  towards  the  legislature,  it  is  his  duty  to  transmit  to  the 
houses  at  each  regular  session,  and  at  such  other  times  as  may  be 
required,  full  information  concerning  the  state  of  the  common- 
wealth, and  to  recommend  to  them  such  measures  as  seem  to 
him  necessary  for  the  public  good.  It  is  also  his  duty  in  case  of 
necessity  for  such  a  step,  or  upon  the  requisition  of  a  sufficient 
number  of  legislators,  to  summon  the  houses  to  extra  session. 

(2)  He  is  commander-in-chief  of  the  state  militia,  and  as  such 
is  bound  to  see,  not  only  that  foreign  invasion  is  repelled,  but 
also  that  internal  order  is  preserved.  (3)  He  exercises  the  clem- 
ency of  the  state  towards  condemned  persons,  having  the  right 
to  grant  pardons  to  persons  convicted  of  crime,  to  remit  fines 
and  penalties,  under  certain  conditions,  and  to  remove  political 
disabilities  incurred  in  consequence  of  conviction  of  crime; 
though  he  exercises  these  high  prerogatives  subject  always  to 
a  definite  responsibility  to  public  opinion  and  to  the  laws. 


520       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


In  some  states,  as  notably  in  Pennsylvania,  the  power  of  granting  par- 
dons is  given  to  the  governor,  however,  only  in  form,  the  sanction  being 
made  necessary  of  a  Board  of  Pardons,  whose  action  is  semi-judicial. 

(4).  In  all  the  states  except  four  (Delaware,  Rhode  Island, 
Ohio,  North  Carolina)  the  governor's  assent  is  made  necessary 
to  the  validity  of  all  laws  not  passed  over  his  dissent  by  a 
special  legislative  vote  upon  a  second  consideration  made  in  full 
view  of  the  governor's  reasons  for  withholding  his  signature. 

979.  All  bills  which  the  governor  signs,  or  upon  which  he  does  not 
take  any  action  within  a  certain  length  of  time,  become  law;  those 
which  he  will  not  sign  he  must  return  to  the  legislature  with  a  state- 
ment of  his  objections.  Generally  he  must  return  bills  which  he  thus 
rejects  to  the  house  in  which  they  originated,  though  in  Kansas  he  must 
return  them  always  to  the  House  of  Representatives. 

980.  The  vote  by  which  a  bill  may  be  passed  over  the  governor's 
veto  varies  very  widely  among  the  states.  In  Connecticut  a  mere  ma- 
jority suflBces  for  its  second  passage ;  in  other  states  a  three-fifths  vote 
is  required,  in  some  a  two-thirds  vote ;  sometimes  a  majority  of  elected 
members  (instead  of  a  special  number  within  a  mere  quorum)  must 
concur  in  a  second  passage ;  and  sometimes  two-thirds  of  the  elected 
members.  In  Missouri  it  is  provided  that  the  votes  of  two-thirds  of 
the  elected  members  shall  be  necessary  in  the  house  in  which  the  meas- 
ure originated,  while  a  mere  majority  of  the  other  house  will  suffice. 

981.  In  thirteen  of  the  states  the  governor  is  given  the  power  to 
veto  particular  items  in  appropriation  bills ;  as  regards  all  other  bills 
his  approval  or  disapproval  must  cover  all  of  the  measure  or  none  of  it. 

982.  The  Secretary  of  State.  —  The  title  '  Secretary  of  State' 
borne  by  a  conspicuous  officer  in  each  of  the  states  is  very  apt 
to  mislead  those  who  have  studied  first  the  English  executive 
or  the  functions  of  our  own  minister  of  foreign  affairs.  The 
federal  Secretary  of  State  is  first  of  all  an  executive  minister, 
only  secondarily  a  secretary  ;  and  the  five  principal  Secretaries 
of  State  in  England  are  equally  without  prominent  secretarial 
functions.   They  are  one  and  all  executive  heads  of  department. 

983.  The  federal  Secretary  of  State  is  entitled  to  his  official  name 
chiefly  by  virtue  of  certain  minor  duties  seldom  thought  of  by  the  pub- 
lic in  connection  with  the  Department  of  State.    He  has  charge  of  the 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  521 


seal  of  the  United  States ;  he  preserves  the  originals  of  all  laws  and  of 
all  orders,  resolutions,  or  votes  of  the  houses  which  have  received  the 
force  of  law ;  he  furnishes  to  Congress,  besides  consular  and  diplomatic 
reports,  lists  of  passengers  arrived  in  the  United  States  from  foreign 
countries,  etc. 

984.  The  chief  clerical  features  of  the  office  which  the  five  Principal 
Secretaries  of  State  in  England  theoretically  share  (sec.  69o)  would 
seem  to  be  represented  by  the  necessity  of  the  countersignature  of  some 
one  of  them  to  the  validity  of  the  sign-manual. 

985.  The  Secretaries  of  State  in  the  commonwealths  of  our 
Union,  on  the  contrary,  can  show  substantial  cause  for  holding 
their  title ;  the  making  and  keeping  of  records  is  the  central 
duty  of  their  office.  It  is  usually  their  duty  to  register  the 
official  acts  of  the  governor,  to  enroll  and  publish  the  Acts  of 
the  Legislature,  to  draw  up  all  commissions  issued  to  public 
officers,  to  keep  all  official  bonds,  to  record  all  state  titles  to 
property,  to  keep  and  affix,  where  authorized,  the  seal  of  the 
commonwealth,  to  preserve  careful  records  of  the  boundaries  of 
the  various  civil  districts  (the  counties,  townships,  etc.)  of  the 
state,  and  to  give  to  all  who  legally  apply  duly  attested  copies 
of  the  public  documents  in  their  keeping.  In  brief,  the  Secre- 
tary's office  is  the  public  record  office. 

986.  Often  other  duties  are  assigned  to  the  Secretary  of  State.  In 
one  state,  for  instance,  he  is  constituted  Internal  Improvement  Com- 
missioner; in  another  Surveyor-general.  But  such  additional  functions 
are  not,  of  course,  characteristic  of  his  office. 

987.  It  is  to  the  Secretary  of  State  in  each  commonwealth  that  the 
votes  of  the  state's  electors  for  President  and  Vice  President  are  re- 
turned ;  it  is  he  who  transmits  them  to  the  president  of  the  Senate  to 
be  opened  in  the  joint  session  of  the  two  houses. 

988.  Votes  in  state  elections  also  are  generally  returnable  to  the 
Secretary  of  State's  office,  and  the  Secretary  of  State  is  very  commonly 
one  of  the  state  canvassers  of  election  returns.  Such  duties  manifestly 
flow  very  naturally  from  the  general  duties  of  his  office. 

989.  The  Comptroller,  or  that  equivalent  officer,  the  state 
Auditor,  is  public  accountant.  It  is  his  function  to  examine 
and  pass  upon  all  claims  presented  under  existing  provisions 


522       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

of  law  against  the  state ;  to  audit  the  accounts  of  all  officers 
charged  with  the  collection  of  the  revenue  of  the  state,  filing 
their  vouchers,  and  requiring  of  them  the  necessary  bonds,  and 
crediting  them  with  all  sums  for  which  they  present  the  state 
Treasurer's  receipt ;  to  ensure  uniformity  in  the  assessment 
and  collection  of  the  public  revenue  by  preparing  and  furnish- 
ing to  the  local  fiscal  officers  the  proper  forms  and  instructions  ; 
to  issue  warrants  for  all  legal  disbursements  of  money  from  the 
treasury  of  the  state,  keeping  a  careful  account  with  the  state 
treasurer ;  to  submit  his  books  and  accounts  at  any  time  to  ex- 
amination by  the  legislature  :  in  a  word,  to  regulate  the  assess- 
ment, collection,  and  disbursement  of  the  public  moneys. 

990.  The  State  Treasurer  may  be  said  simply  to  keep  the 
public  moneys  subject  to  the  warrants  of  the  Comptroller. 
Without  such  warrant  he  can  pay  out  nothing. 

991.  These,  manifestly,  are  not  offices  of  control.  The  Comptroller, 
for  example,  can  generally  proceed  against  local  fiscal  officers  through 
the  local  law-representatives  of  the  state,  the  local  states-attorneys,  in 
the  ordinary  courts,  for  the  purpose  of  securing  the  necessary  bonds, 
when  these  are  not  promptly  or  properly  given,  or  of  enforcing  the  pay- 
ment of  moneys  withheld  or  uncollected ;  and  he  may  make  test  of  the 
validity  or  sufficiency  of  official  bonds  by  any  means  within  his  reach ; 
but  he  has  none  but  this  judicial  control,  this  indirect  control,  that  is, 
exercised  through  the  courts  over  officers  who  refuse  bond  or  who  neglect 
the  forms  and  instructions  issued  to  them  regarding  the  assessment  and 
collection  of  taxes.  The  whole  machinery  of  control  is  local,  not  central, 
—  through  courts  and  states-attorneys  who  are  themselves  elected  by  the 
same  persons,  in  town  or  county,  by  whom  the  collecting  officers  are 
chosen.  The  local  fiscal  officers  are  not,  in  other  words,  officers  of  the 
state  Treasury,  but  officers  of  the  towns  and  counties  whom  the  state 
employs  as  its  agents. 

992.  The  State  Superintendent  of  Education  often  occupies 
a  somewhat  different  position.  It  is  his  prerogative  to  pre- 
scribe the  qualifications  of  teachers  and  the  methods  by  which 
they  are  to  be  selected ;  he  exercises  a  thorough  inspection  of 
the  schools  throughout  the  state ;  often  he  is  given  power  to 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  523 


secure  proper  reports  of  school  work  through  special  inspectors 
appointed  to  act  instead  of  local  superintendents  whose  reports 
are  irregular  or  unsatisfactory.  School  administration  is  rec- 
ognized to  require  a  certain  degree  of  centralization  of  author- 
ity, and  so  to  constitute  a  legitimate  exception  to  the  general 
rules"  as  to  the  constitution  of  executive  power  in  the  states. 
Still,  even  the  power  of  a  state  Superintendent  of  Education 
does  not  often  go  very  much  beyond  mere  supervision.  The 
powers  of  district  or  township  school  directors  remain  in  most 
cases  very  absolute  as  regards  the  management  of  the  schools. 
They  are  governed  by  statute,  not  by  the  state  Superintendent. 

993.  Constitutional  Diffusion  of  the  Executive  Power.  —  The 

constitutions  of  at  least  seven  of  the  states  make  very  frank  confession 
of  the  diffusion  of  executive  authority  upon  which  I  have  dwelt  as 
characteristic  of  our  state  system.  Thus  the  constitution  of  Alabama 
provides  that  the  executive  power  "  shall  consist  of  the  governor,  Secre- 
tary of  State,  state  treasurer,  state  auditor,  attorney -general,  and  super- 
intendent of  education,  and  the  sheriff  for  each  county."  The  consti- 
tutions of  Arkansas,  Colorado,  Illinois,  Minnesota,  Pennsylvania,  and 
Texas,  make  similar  enumerations,  with  the  exception  of  the  sheriffs 
of  the  counties.  The  Florida  constitution  of  1868  provided  that  the 
governor  should  be  "  assisted  by  a  cabinet  of  administrative  officers  " 
appointed  by  himself,  subject  to  the  confirmation  of  the  Senate ;  but 
clothed  these  officers  with  functions  which  made  them  in  fact  not 
assistants  but  colleagues. 

The  constitutions  of  most  of  the  other  states  declare  the  executive 
power  to  be  vested  in  the  governor,  but  are  hardly  through  with  out- 
lining his  functions  before  they  provide  for  the  erection  of  executive 
departments  among  which  the  greater  part  of  executive  power  shall  be 
parcelled  out;  so  that  the  arrangement  is,  in  effect,  that  of  those  states 
which  declare  the  executive  office  to  be  'in  commission'  by  enumerating 
t^ie  officers  who  are  to  divide  its  duties. 

994.  Full  Legal,  but  no  Hierarchical,  Control. — This,  then,  is 
the  sum  of  the  whole  matter :  the  control  of  law  is  thorough  and  com- 
plete :  statutes  leave  to  no  officer,  either  central  or  local,  any  consider- 
able play  of  discretionary  power :  so  far  as  possible  they  command  every 
officer  in  every  act  of  his  administration.  But  no  hierarchy  stands  be- 
tween any  officer  and  the  law.    The  several  functions  of  executive  power 


524       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

are  segregated,  —  each  official,  so  to  say,  serves  his  own  statute.  So 
thorough  is  the  control  attempted  by  legislation,  —  and  so  potent 
among  us  is  the  legal  habit  and  conscience,  the  law-abiding  sense, — 
that  no  official  control,  no  hierarchical  organization  has  been  thought 
necessary. 

Local  Government. 

995.  General  Characteristics.  — The  large  freedom  of  action 
and  broad  scope  of  function  given  to  local  authorities  is  the 
distinguishing  characteristic  of  the  American  system  of  govern- 
ment. Law  is  central,  in  the  sense  of  being  uniform  and  the 
command  of  the  central  legislature  in  each  state ;  and  its  pre- 
scriptions are  minute ;  but  function  and  executive  power  are 
local.  There  is  a  single  comprehensive  statutory  plan,  but  a 
host  of  unassociated  deputies  to  carry  it  into  effect,  an  infinite 
variety  in  the  local  application  of  its  principles.  General  laws 
are  given  to  the  localities  by  state  legislation,  and  these  laws 
are  generally  characterized  by  a  very  great  degree  of  particu- 
larity and  detail  of  provision;  but  no  central  authority  has 
executive  charge  of  their  application :  each  locality  must  see 
to  it  for  itself  that  they  are  carried  out. 

996.  Duties  of  Local  Government.  —  The  duties  of  local 
government  include  Police,  Sanitation,  the  Care  of  the  Poor, 
the  Support  and  Administration  of  Scliools,  the  Construction 
and  Maintenance  of  Koads  and  Bridges,  the  Licensing  of 
Trades,  the  Assessment  and  Collection  of  Taxes,  besides  the 
Administration  of  Justice  in  the  lower  grades,  the  maintenance 
of  Court  Houses  and  Jails,  and  every  other  affair  that  makes 
for  the  peace,  comfort,  and  local  good  government  of  the  various 
and  differing  communities  of  each  commonwealth.  Li  many 
places  libraries  are  included  among  the  institutions  given  into 
the  charge  of  the  officers  of  local  government.  Of  course  local 
officers  look  to  state  law  for  their  authority ;  but  practically 
state  administration  represents  only  the  unifying  scheme  of 
local  government.  Local  administration  is  tlie  administration 
of  the  state, 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  525 

997.  Local  Varieties  of  Organization.  —  Almost  without 
exception  the  states  which  have  been  added  to  the  original 
thirteen  by  whom  the  Union  was  formed  have  derived  their 
local  institutions,  whether  by  inheritance  or  by  imitation,  from 
the  mother-states  of  the  Atlantic  seaboard.  Wherever  New 
England  settlers  have  predominated  the  township  has  taken 
quick  rootage  and  had  a  strong  growth;  wherever  Southern 
men  have  gone  the  county  has  found  favor  above  other  forms 
of  local  organization ;  wherever  the  people  from  the  two  sec- 
tions have  met  and  mixed,  as  in  the  early  days  they  met  and 
mixed  in  New  Jersey  and  Pennsylvania,  the  same  combination 
or  mixture  of  institutions  that  is  characteristic  of  the  middle 
Atlantic  states  is  found  in  full  prominence.  But  in  all  cases 
the  new  foundations  in  the  west  have  this  common  feature : 
they  have  all  been  in  a  greater  or  less  degree  artificially  con- 
trived. Towns  have  not  grown  up  in  the  northwest  for  the 
same  reasons  that  led  to  their  growth  in  New  England,  in  the 
days  when  isolation  was  necessary  and  when  isolation  of  course 
involved  compact  and  complete  self-government  (sees.  835-837)  •. 
they  have,  on  the  contrary,  been  deliberately  constructed  in 
imitation  of  New  England  models.  Neither  have  western 
counties  been  developed  by  processes  of  pioneer  agricultural 
expansion  such  as  made  the  irregular,  and  in  a  sense  geograph- 
ically natural,  counties  of  Virginia  (sees.  841-843)  :  they 
have,  on  the  contrary,  been  geometrically  laid  off  in  the  exact 
squares  of  the  government  survey  because  the  settlers  wanted 
to  reproduce  by  statute  the  institutions  which  in  their  old 
homes  have  been  evolved  by  slow,  unpremeditated  colonial 
growth.  The  institutions  of  the  admitted  states,  in  a  word, 
were  transplanted  by  enactment,  whereas  the  institutions  of 
the  original  states  were  almost  unconscious  adaptations  of 
old  custom.  It  by  no  means  follows  that  these  newer  insti- 
tutions lack  naturalness  or  vigor:  in  most  cases  they  lack 
neither, — a  self-reliant  race  has  simply  re-adapted  institutions 
common  to  its  political  habit ;  but  they  do  lack  the  individu- 


526       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

ality  and  the  native  flavor  often  to  be  found  in  the  institutions 
in  whose  likeness  they  have  been  made. 

998.  The  differences  of  institution,  then,  which  show  them- 
selves in  the  east  between  local  government  in  New  England, 
local  government  in  the  South,  and  local  government  in  the 
central  belt  of  Atlantic  states  extend  also  into  the  west. 
There,  too,  we  find  the  three  types,  the  township  type,  the 
county  type,  and  the  compound  type  which  stands  between 
the  two ;  but  the  compound  type  is  in  the  west  naturally  the 
most  common :  the  westerner  has  had  the  sagacity  to  try  to  com- 
bine the  advantages  of  all  the  experiments  tried  in  the  older 
states,  rejoicing  in  being  fettered  by  no  hindering  traditions, 
and  profiting  by  being  restrained  by  no  embarrassing  incapac- 
ity for  politics. 

Keeping  these  facts  in  mind,  it  will  be  possible  to  consider 
without  confusion,  the  Township,  the  County,  the  School  Dis- 
trict, the  Town,  and  the  City  as  elements  of  local  government 
in  the  United  States.  The  different  place  and  importance 
given  to  each  of  these  organs  in  different  sections  may  be 
noted  as  we  proceed. 

999.  The  Township :  Its  Historical  Origin.  —  The  town- 
ship is  entitled  to  be  first  considered  in  every  description  of  local 
government  in  the  United  States  not  only  because  it  is  a  pri- 
mary unit  of  administration,  but  also  by  reason  of  its  impor- 
tance and  because  of  its  ancient  and  distinguished  lineage.  It 
is  a  direct  lineal  descendant  from  the  primitive  communal 
institutions  which  Caesar  and  Tacitus  found  existing  in  the 
vigor  of  youth  among  the  peoples  living  in  the  ancient  seats 
of  our  race.  The  New  England  town  was  not  an  American 
invention ;  and  the  settlers  upon  the  northern  coasts  did  not 
adopt  the  town  system  simply  because  they  were  obliged  to 
establish  themselves  in  isolated  settlements  in  a  harsh  climate 
and  among  hostile  native  tribes.  We  have  seen  (sees.  835-6) 
that  they  kept  together  in  close  settlements  for  religious  pur- 
poses, for  mutual  defence,  and  for  purposes  of  trade,  and  that 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  527 

their  settlements  were  completely  isolated  by  stretches  of  wild 
primeval  forest ;  but  their  form  of  government,  or  at  least  the 
talent  and  disposition  for  it,  they  brought  with  them,  an  inheri- 
tance of  untold  antiquity.  Their  political  organization  was 
simply  a  spontaneous  reproduction  of  the  ancient  Germanic 
Mark  (sees.  222,  652).  In  most  cases  they  regarded  the  land 
upon  which  they  settled  as  the  property  of  the  community, 
just  as  their  remote  barbarian  ancestors  had  done ;  like  those 
ancestors,  they  divided  out  the  land  among  families  and  indi- 
viduals or  worked  it  in  common  as  might  be  decided  by  public 
vote  in  general  assembly,  in  open  'folk-moot'  we  may  call 
it.  This  same  '  town-meeting,'  as  they  styled  it,  voted  the 
common  discipline,  elected  the  officers,  and  made  the  rules 
of  common  government :  each  group  of  colonists  constituted 
themselves  a  state  with  a  sovereign  primary  assembly.  They 
re-established,  too,  the  old  principles  of  folk-land.  Whether 
they  tilled  their  lands  in  common  or  not,  they  had  always  a 
communal  domain,  part  of  which  was  kept  as  open  Common 
for  the  general  pasturage,  and  the  rest  of  which  was  given  over 
in  parcels,  from  time  to  time,  for  settlement.  They  were 
inventing  nothing ;  they  were  simply  letting  their  race  habits 
and  instincts  have  natural  play.  Their  methods  showed  signs 
at  almost  every  point,  of  course,  of  having  been  filtered  through 
intervening  English  practices ;  but  they  rested  upon  original 
Teutonic  principles. 

1000,  The  exceptions  to  the  principle  of  folk-land  occurred  where, 
as  in  the  Hartford,  Windsor,  and  Wethersfield  settlements  on  the  Con- 
necticut, the  land  was  held,  not  in  common  by  the  civil  community, 
but  in  common  by  a  sort  of  corporation  of  joint  owners  under  whose 
supervision  the  new  colonies  were  established.  These  joint  owners  were 
quite  distinct  from  communal  authorities.! 

1001.  Absorption  of  the  Town  in  Larger  Units  of  Govern- 
ment. — It  was  towns  of  this  primitive  pattern  that  were  drawn 
together  ultimately  into  the  New  England  colonies  of  the  later 

1  See  Andrews,  The  River  Towns  of  Connecticut  (Johns  Hopkins  Studies, 
Seventh  Series). 


528       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

time  by  the  processes  I  have  already  described  (sec.  838)  ;  and 
of  course  in  becoming  parts  of  larger  organizations  they  lost 
to  some  extent  their  independence  of  movement,  as  well  as  in 
some  slight  degree  their  individuality  also.  In  some  cases, 
as  for  instance  in  the  coalescence  of  ^  Connecticut '  and  New 
Haven  (sec.  849),  the  establishment  of  central  state  legisla- 
tive control  over  the  towns  took  the  shape  of  a  mere  confirma- 
tion to  them  of  their  old  functions  and  privileges,  and  in  this 
way  fully  recognized  their  elder  and  once  sovereign  place  in 
the  historical  development  of  the  commonwealth ;  but  it  in  all 
cases  necessarily  resulted  in  their  virtual  subordination.  It 
led  also  to  the  creation  of  new  areas  of  local  government. 
Towns  were  grouped,  at  first  for  judicial  purposes  only,  into 
counties,  and  the  counties  came  in  time  to  furnish  a  more  con- 
venient basis  for  certain  administrative  functions  once  vested 
exclusively  in  the  smaller  areas.  Great  cities,  too,  presently 
grew  up  to  demand  more  complex,  less  simply  and  directly 
democratic,  methods  than  those  of  the  towns.  But  no  change 
has  seriously  threatened  town  organization  with  destruction : 
it  is  still  the  most  characteristic  and  most  vital  element  of 
local  government  in  New  England;  and  it  still  has  substan- 
tially the  same  officers,  substantially  the  same  functions  that 
it  possessed  at  its  foundation  in  America. 

1002.  Of  course  an  influx  of  foreigners  has  in  many  places  disturbed 
and  even  impaired  the  town  system,  and  the  cities,  which  draw  to  them- 
selves so  rapidly  the  rural  population,  but  which  are  too  big  for  the 
primitive  methods  of  town  government,  are  powerful  disintegrating 
elements  in  the  midst  of  the  old  organization ;  but  the  new  adaptation 
and  development  of  the  township  in  the  west,  and  the  tendency  to  in- 
troduce it  in  some  parts  of  the  south,  seem  still  to  promise  it  honor  and 
length  of  days. 

1003.  Town-meeting.  — The  sovereign  authority,  the  motive 
power,  of  tovrn  government  is  the  Town-meeting,  the  general 
assembly  of  all  the  qualified  voters  of  the  town,  which  has 
reminded  so  many  admiring  observers  of  the  ancient  Grecian 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  529 

and  Roman  popular  assemblies  and  of  the  Landsgemeinde  of 
Switzerland.  The  regular  session  of  this  assembly  is  held  ' 
once  a  year,  usually  in  the  Spring/  but  extra  sessions  are  held 
from  time  to  time  throughout  the  year  as  occasion  arises,  due 
notice  being  given  both  of  the  time  of  meeting  and  of  the 
exact  business  to  be  considered.  Town-meeting  elects  all 
officers,  —  its  regular  annual  session  being  the  session  for  elec- 
tions, —  and  decides  every  affair  of  local  interest.^  It  is  pre- 
sided over  by  a  '  Moderator '  and  attended  by  the  town  officers, 
who  must  give  full  account  of  their  administration,  and  who 
must  set  before  the  Meeting  a  detailed  statement  of  the  sums 
of  money  needed  for  local  government.  These  sums,  if  ap- 
proved, are  voted  by  the  Meeting  and  their  collection  ordered, 
on  the  prescribed  basis  of  assessment.  Everything  that  the 
officials  and  committees  of  the  town  have  done  is  subject  to  be 
criticised,  everything  that  they  are  to  do  is  subject  to  be  regu- 
lated by  the  Meeting. 

1004.  The  Town  Officers. — The  officers  of  the  town  are 
certain  '  Selectmen,'  from  three  to  nine  in  number,  according 
to  the  size  and  needs  of  the  town,  who  constitute  the  general 
executive  authority  for  all  matters  not  otherwise  assigned ;  a 
Town  Clerk,  who  is  the  keeper  of  the  town  records  and  regis> 
ters ;  a  Treasurer ;  Assessors,  whose  duty  it  is  to  make  valua- 
tion  of  all  property  for  tax  assessment ;  a  Collector  of  the  taxes 
voted  by  the  Meeting  or  required  by  the  county  and  state 
authorities ;  a  School  Committee ;  and  a  variety  of  lesser  offi- 
cers of  minor  function,  such  as  Constables,  together  with  cer- 
tain committees,  such  as  library  trustees,  etc.  Generally  there 
are  also  overseers  of  the  poor  and  surveyors  of  highways. 

1005.  To  this  corps  of  officers  all  the  functions  of  local  gov- 
ernment belong.    The  county  authorities  cannot  enter  their 

1  In  Connecticut  in  the  autumn, 

2  In  some  of  the  coast  towns  (townships),  as  notably  in  Connecticut,  the 
regulation  of  the  use  of  the  oyster  beds  is  a  very  prominent  question  in 
town-meeting. 


530       THE  (GOVERNMENT  OF  THE  UNITED  STATES. 

domain,  but  luust  confine  themselves  to  the  judicial  duties 
proper  to  them  and  to  such  administrative  matters  as  the  lay- 
ing out  of  inter-town  roads,  the  issuing  of  certain  county 
licenses,  the  maintenance  of  county  buildings,  etc.,  for  the 
due  oversight  of  which  larger  areas  than  the  town  seem  nec- 
essary. County  expenses  are  defrayed  by  taxes  raised  by  the 
towns :  the  county  authorities  apportion  such  taxes,  but  lay 
none. 

In  Rhode  Island  the  only  county  officials  are  those  connected  with 
the  administration  of  justice. 

1006.  The  Township  of  the  Northwest.  —  The  town  may, 
therefore,  be  said  to  exist  in  New  England  in  its  historical 
character  and  simplicity,  overshadowed  here  and  there  by  great 
cities,  and  everywhere  modified  and  partially  subordinated  by 
the  later  developments  of  state  and  county.  In  the  Northwest, 
whither  New  England  emigrants  have  gone,  it  has  entered 
another  phase  and  taken  on  another  character,  —  a  character 
which  may  perhaps  foreshadow  its  ultimate  organization,  should 
the  country  have  at  any  future  time  the  uniform  practices  of 
local  government  now  diml}^  promised  by  certain  incipient 
forces  of  institutional  interchange  and  imitation. 

1007.  In  the  first  place,  the  Northwestern  township  is  more 
thoroughly  integrated  with  the  county  than  is  the  New  Eng- 
land toAvnship :  county  and  township  fit  together  as  pieces  of 
the  same  organism.  In  New  England  the  township  is  older 
than  the  county,  and  the  county  is  a  grouping  of  townships 
for  certain  purposes ;  in  the  Northwest,  on  the  contrary,  the 
county  has  in  all  cases  preceded  the  township,  and  townships 
are  divisions  of  the  county.  The  county  may  be  considered  as 
the  central  unit  of  local  government :  townships  as  differentia- 
tions Avithin  it. 

1008.  The  county  preceded  the  township  because  the  county 
furnishes,  for  our  people,  the  natural  basis  of  organization  for 
a  scattered  agricultural  population ;  the  township  came  after- 
wards, at  the  suggestion  of  the  New  England  settlers,  as  the 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  531 


natural  organization  for  a  population  become  more  numerous 
and  drawn  together  into  closer  association. 

1009.  Its  Origin.  —  As  all  the  best  authorities  on  this  sub- 
ject have  pointed  out,  school  organization  supplied  the  begin- 
nings of  the  township  system  in  all  the  more  newly  settled 
portions  of  the  country,  and  is  now  producing  the  seeds  of  it 
in  the  South.  The  western  township  has  sprung  out  of  the 
school  as  the  New  England  township  of  the  earliest  days  sprang 
out  of  the  church.  The  government  surveyor,  who  has  every- 
where preceded  final  settlement  in  the  west,  has  in  all  cases 
mapped  out  the  land  in  regular  square  plots  which,  for  con- 
venience, he  has  called  'townships,'  and  in  every  township 
Congress  has  reserved  a  square  mile  of  land  for  the  endow- 
ment of  schools.  This  endowment  had  to  be  administered  by 
the  settlers,  school  organization  had  to  be  effected,  the  name 
township  had  already  been  given  to  the  district  so  endowed, 
and  there  was,  therefore,  naturally  school  organization  on  the 
basis  of  the  township.  From  this  there  eventually  issued  an 
equally  natural  growth  of  local  political  institutions.^ 

1010.  Spread  of  Township  Organization.  —  The  develop- 
ment of  the  township  has  progressed  almost  in  direct  ratio 
with  the  development  of  local  government :  in  many  sections 
of  the  country,  even  where  population  is  dense,  county  organ- 
ization is  still  made  to  sufiice  for  such  districts  as  have  not 
assumed  the  structure  and  privileges  of  village  or  city  incor- 
poration, but  wherever  any  special  effort  has  been  made  to 
perfect  local  rural  organization  for  administrative  purposes, 
the  township  has  been  accepted  as  the  best  model  of  politi- 
cal association. 

1011.  It  has  received  its  widest  acceptance  in  such  middle  states  as 
New  York  and  Pennsylvania,  and  in  the  great  Northwestern  states  of 
Michigan,  Wisconsin,  Illinois,  and  Minnesota.  Elsewhere,  in  the  Middle 
West,  in  Ohio,  Indiana,  and  Kansas,  for  example ;  and  in  such  states  of 

^  See  p.  10  of  Local  Government  in  Illinois,  by  Dr.  Albert  Shaw  (Johns 
Hopkins  Studies  in  Historical  and  Political  Science,  First  Series). 


532       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

the  far  West  as  California,  it  is  less  fully  developed,  and  occupies  a 
much  more  subordinate  place  as  compared  with  the  County.  The 
County,  indeed,  may  be  said  to  be  the  prevalent  unit  of  local  govern- 
ment in  California,  as  well  as  in  Oregon,  Nebraska,  and  Nevada. 

1012.  Township  Organization.  —  The  organization  of  the 
township  outside  of  Xew  England,  of  course,  varies  with  its 
development.  Where  it  is  most  vigorous  there  is  the  town- 
meeting  exercising  powers  strictly  defined  and  circumscribed 
by  statute  and  somewhat  less  extensive  than  the  powers  of 
town-meeting  in  New  England,  but  still  covering  a  multitude 
of  local  interests  and  representing  a  very  real  control.  Where 
it  is  less  developed  there  is  no  town-meeting,  but  instead  only 
the  processes  of  popular  election  to  local  office.  In  all  cases 
the  '  selectmen '  have  disappeared :  at  least  we  find  no  officers 
bearing  their  name,  and  no  officers  possessing  exactly  their 
functions.  Where  the  township  is  most  completely  organized 
we  find  one  or  more  'supervisors'  standing  at  the  front  of 
township  administration,  who  are  clothed  with  the  duties  of 
overseers  of  the  poor,  who  exercise  oftentimes  a  certain  control 
over  the  finances  of  the  township,  and  who  are,  in  general  func- 
tion, the  presiding  and  directing  authorities  of  the  adminis- 
tration. 

1013.  In  Michigan  and  Illinois  a  single  supervisor  presides  over  each 
township ;  and  in  the  former  state  each  supervisor  is  also  tax  assessor, 
while  in  the  latter  he  is  treasurer.  In  Wisconsin  and  Minnesota  there 
are  three  supervisors  in  each  township  ;  in  Ohio  three  nearly  equivalent 
oflScers  called  '  trustees.' 

1014.  Where  there  are  several  supervisors  or  trustees  in  the 
township,  it  is  common  to  associate  them  together  as  a  Board, 
and  under  such  an  arrangement  they  very  closely  resemble  the 
New  England  board  of  selectmen  in  their  administrative  func- 
tions. Township  boards  also  exist  under  the  laws  of  some 
states  in  which  there  is  but  a  single  supervisor  for  each  town- 
ship, being  composed,  usually,  hesides  the  supervisor,  of  such 
officers  as  the  town  clerk  and  the  Justices  of  the  Peace. 


THE  GOVKRNMEXT  OF  THE  UNITED  STATES.  538 

In  Michigan  such  a  board  lias  rather  extensive  supervisory  powers  ; 
in  Illinois  it  is  a  committee  of  audit  simply. 

1015.  The  number  of  township  officers  of  course  varies  with 
the  degree  of  development  to  which  the  township  system  has 
attained.  In  Ohio,  where  the  system  is  still  more  or  less  in 
germ,  there  are,  besides  the  three  trustees,  no  township  officers 
save  a  clerk  and  a  treasurer.  In  Michigan,  even,  where  the 
township  system  is  fully  accepted,  there  is  neither  an  assessor 
nor  a  collector  of  taxes,  the  supervisor  acting  as  assessor  and 
the  treasurer  as  collector.  In  Illinois,  on  the  other  hand,  there 
is  always  a  very  full  corps  of  officers  :  supervisor,  collector,  as- 
sessor, clerk,  commissioners  of  highways,  school  trustees,  jus- 
tices of  the  peace,  constables,  etc. 

1016.  The  term  of  all  officers  except  justices  of  the  peace,  road  and 
school  commissioners,  and  constables,  is  generally  but  a  single  year,  as 
in  New  England  ;  the  terms  of  the  otlier  officers  named  are  often  three 
or  four  years. 

1017.  Where  there  is  a  town-meeting  the  officers  are  elected  by  it; 
where  there  is  no  town-meeting  tliey  are  of  course  chosen  by  ballot. 

1018.  The  Township  in  the  Middle  Atlantic  States. —Of 

course  it  is  reversing  the  historical  order  to  speak  of  the  town- 
ships of  the  middle  Atlantic  states  after  discussing  the  town- 
ships of  the  newer  west ;  but  it  is  not  reversing  the  order  of 
convenient  exposition.  The  processes  of  formation  are  plainly 
visible  in  the  west ;  in  the  east  they  are  more  complex  and 
obscure,  being  the  formations  of  history  rather  than  of  legis- 
lation. 

1019.  The  New  York  township  is  like  the  townships  of 
Michigan  and  Illinois  in  its  structure  and  functions ;  but  like 
because  it  is  an  original,  not  because  it  is  a  copy.  Over  it 
presides  a  single  supervisor  who  is  the  treasurer  and  general 
financial  officer  of  the  area.  It  has  its  clerk,  its  assessor,  its 
collector,  its  commissioners  of  highways,  its  constables,  its  jus- 
tices of  the  peace.  It  has  also  special  overseers  of  the  poor. 
An  annual  town-meeting,  under  the  presidency  of  the  justices 


53-1       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

of  the  peace,  or  of  the  town  clerk,  elects  all  officers,  passes 
sundry  by-laws,  votes  taxes  for  schools  and  poor-relief,  and 
(ionstitutes  the  general  governing  authority. 

In  counties  containing  300,000  or  more  inhabitants  there  is  a  pro- 
vision for  the  election  of  township  officers  by  ballot, 

1020.  The  Pennsylvania  Township.  —  The  Xew  York  town- 
ship system  suggested  the  system  of  the  states  about  the  lakes, 
and  stands  nearest  in  the  order  of  development  to  the  town- 
ship of  Isew  England.  The  township  of  Pennsylvania,  on  the 
other  hand,  suggests  the  township  system  of  the  next  lower  belt 
of  western  states.  In  it  there  is  no  town-meeting,  but  only  an 
executive  machinery.  A  board  of  two  or  three  supervisors  hold- 
ing for  a  term  of  three  years  presides  over  the  township,  and 
has  as  its  most  prominent  function  the  care  of  highways.  For 
the  rest,  there  are  the  usual  officers,  with  the  somewhat  uncom- 
mon addition  of  three  auditors.  Where  the  township  is  charged 
with  the  care  of  the  poor,  two  special  overseers  are  elected. 

1021.  Origins  of  Local  Government  in  the  Middle  States. — 

Local  government  in  New  York,  Pennsylvania,  Delaware,  and  most  of 
New  Jersey  runs  back,  as  to  a  common  source,  to  the  system  established 
in  colonial  times  by  the  Duke  of  York  as  proprietor.  Under  that  sj-s- 
tem  the  township  was  the  principal  organ  of  local  government.  Its 
officers  were  certain  constables  and  overseers ;  and  above  the  township 
was  only  an  artificial  'Riding'  presided  over  by  a  sheriff.  Certain 
General  Courts  levied  highway  and  poor  rates,  appointed  overseers  of 
highways,  etc.  After  the  period  of  the  Duke's  proprietorship,  the  de- 
velopment of  local  government  in  the  several  parts  of  his  domahi 
exhibited  a  considerable  variety.  The  township  retained  its  importance 
in  New  York,  but  further  south,  particularly  in  Pennsylvania,  the 
county  gained  the  superior  place. 

1022.  The  Township  in  the  South.  —  Wherever,  in  the 
south,  the  principle  of  local  taxation  for  local  schools  has  been 
fully  recognized,  there  the  township  has  begun  to  show  itself, 
at  least  in  bud.  Virginia,  the  oldest  of  the  southern  states, 
and  in  most  respects  the  type  of  all  the  rest  in  institutional 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  535 

development,  lias,  since  1870,  had  the  township  system  in  full 
flower. 

1023.  In  the  Virginia  townships,  as  in  those  of  the  middle  west, 
there  is  no  town-meeting,  —  all  officers,  down  even  to  the  constable,  are 
elected  at  the  polls.  Each  township  has  its  single  supervisor,  but,  as  in 
Michigan,  the  supervisor  has  authority  only  as  a  member  of  a  township 
board,  on  which  the  commissioner  of  roads  and  the  assessor  are  asso- 
ciated with  him.  This  board  is  the  auditing  and  general  financial 
authority  of  the  township,  has  charge  of  highways,  has  the  usual  care 
of  the  township  property,  and  the  usual  general  oversight.  The  clerk  of 
the  township  is  ex  officio  treasurer,  and  must  countersign  the  warrants 
of  the  board.  There  are  special  overseers  of  the  poor,  but  county  poor- 
houses  receive  paupers  sent  from  the  townships.  For  the  rest,  there  is 
the  usual  collector,  justice  of  the  peace,  and  constable.  As  in  New 
York,  the  supervisors  of  the  townships  collectively  constitute  the  gov- 
erning board  of  the  county. 

North  Carolina,  also,  and  West  Virginia  have  adopted  to  some  extent 
the  township  system. 

The  division  of  power  between  township  and  county  can  be 
most  intelligibly  discussed  in  connection  with  the  following 
outline  of  county  organization. 

1024.  The  County.  —  The  natural  history  of  the  county  is 
best  studied  in  the  south,  where,  despite  the  partial,  and  in 
Virginia  the  complete  formal,  adoption  of  township  organiza- 
tion, the  county  remains  the  chief,  and  almost  the  only  organ 
of  local  order  and  government.  We  have  seen  (sees.  841,  842) 
how  natural  a  basis  of  government  it  was  for  a  wide-spread 
agricultural  population.  The  county  was  imported  into  the 
west  by  southern  settlers,  but  also  found  there  at  first  its 
natural  reason  for  existence  in  a  similarly  diffused  population. 
New  England  immigration  and  new  conditions  of  industrial 
and  social  combination  have  created  the  township  within  the 
county  in  the  west,  as  they  promise  to  create  it  in  the  south, 
also  (see  sec.  1022). 

1025.  In  all  cases  it  would  seem  the  county  was  originated 
for  judicial  purposes,  as  an  area  in  and  for  which  courts  were 
to  be  held,  though  in  such  confederate  colonies  as  Connecticut 


536       THE  GOVERK.MENT  OF  THE  I'NITED  STATES. 

it  was  also  in  part  tlie  outgrowth  of  the  union  of  different 
groups  of  once  independent  towns.  In  the  south  the  county 
became  also  the  single  area  for  the  administrative  organization 
of  local  government,  being  given  the  functions  elsewhere  di^ 
vided  between  the  county  and  lesser  areas  like  the  township. 
In  New  England  certain  general  functions  of  a  limited  charac^ 
ter  have  been  conferred  upon  it  by  subtraction  from  the  town- 
ships. In  the  northwest,  county  and  township  have  been 
created  almost  simultaneously  and  side  by  side,  and  are  care- 
fully integrated. 

1026.  The  American  county  was  of  course  in  the  first  instance  a 
frontier  copy  of  the  English  shire ;  but,  of  course,  the  American  county 
affords  no  analogy  in  its  growth  to  the  growth  of  its  English  prototype. 
The  English  shire  in  a  great  many  instances  traces  its  history  back  to 
the  time  when  it  was  a  separate  Saxon  kingdom,  and  may  be  said  to 
have  as  natural  boundaries  as  France  ;  American  counties,  on  the  other 
hand,  have  all  been  deliberately  'laid  out,'  as  judicial  and  administra- 
tive subdivisions,  and  have  no  independent  historical  standing. 

1027.  The  southern  county,  which  undertakes  all  of  local 
administration,  has,  of  course,  a  complete  set  of  officers.  At 
its  head  is  a  small  board  of  county  commissioners.  Acting 
under  the  general  superintendence  of  the  commissioners  there 
are  generally  a  county  treasurer,  auditor,  superintendent  of 
roads,  superintendent  of  education,  and  superintendent  of  the 
poor.  On  its  judicial  side,  the  county  has  its  sheriff,  its  clerk, 
its  ordinary  or  surrogate,  its  coroner,  and  its  states-attorney, 
the  latter  generally  acting  for  a  judicial  district  inclusive  of 
several  counties.  The  functions  of  the  county,  of  course,  em- 
brace the  oversight  of  education,  the  maintenance  of  jails  and 
poor-houses,  the  construction  and  repair  of  highways,  and  rJl 
local  matters.  County  officers  are  in  almost  all  instances 
elected  by  popular  vote.  Under  the  southern  county  system 
the  sheriff  is  commonly  tax-collector. 

1028.  Where  the  township  exists  there  is  great  variety  of 
county  organization,  almost  the  only  point  of  common  likeness 


THE  GOVERJ^MENT  OF  THE  UNITED  STATES.  537 

being  the  organization  of  justice.  The  county  always  has  its 
sheriff,  and  generally  its  separate  courts  with  the  usual  coro- 
ner and  clerk.  The  variety  exists  in  the  domain  of  adminis- 
trative structure.  Sometimes,  as  in  New  York,  Michigan,  and 
Illinois,  the  county  administrative  authority  is  a  board  com- 
posed of  the  supervisors  of  all  the  townships ;  sometimes,  as 
in  Pennsylvania  and  Minnesota,  the  county  authority  is  a 
board  of  three  commissioners.  In  Wisconsin  the  county  board 
consists  of  members  each  of  whom  is  chosen  by  two  or  more 
townships.  Where  the  county  is  given  least  power,  as  in 
New  England,  its  administrative  functions  hardly  extend  be- 
yond the  maintenance  of  such  county  buildings  as  the  jail  and 
court-house,  the  granting  of  certain  licenses,  and  the  partial 
supervision  of  the  highway  system.  In  New  York  and  the 
northwest  the  county  authorities  often  undertake  the  relief 
of  the  poor,  sometimes  exercise  an  extensive  control  over  the 
debt-contracting  privileges  of  the  smaller  areas,  often  audit 
the  accounts  of  local  officers,  and  supervise  taxation  for  pur- 
poses of  equalization. 

Where  townships  exist,  then,  the  division  of  functions  may  be  said 
to  be  as  follows  :  the  township  is  the  area  for  the  administration  of 
schools,  for  the  relief  of  the  poor  (unless  by  popular  vote  this  function 
is  given  to  the  county),  police,  construction  and  maintenance  of  high- 
ways, sanitation;  the  county  is  the  area  for  the  administration  of  jus- 
tice, for  the  maintenance  of  jails,  courthouses,  and  sometimes  poor- 
houses,  for  tax  equalization,  and  often  for  the  exercise  of  certain  other 
general  supervisory  powers. 

1029.  Villages,  Boroughs,  Cities.  —  Counties  and  town- 
ships are  areas  of  rural  organization  only ;  with  the  compacting 
of  population  in  great  towns  and  cities  other  and  more  elabo- 
rate means  of  organization  become  necessary,  and  a  great  body 
of  constitutional  and  statutory  law  has  grown  up  in  the  states 
concerning  the  incorporation  of  such  urban  areas.  There  is  no 
municipal  corporations  act  in  any  of  our  states  such  as  that 
under  which,  in  England,  cities  of  all  sizes  may  acquire  the 


538       THK  GOVERNMENT  OF  THE  UNITED  STATES. 


privileges  and  adopt  the  organization  of  full  borough  govern- 
ment (sec.  794)  :  the  largest  towns  are  left,  under  our  system, 
to  depend  for  their  incorporation  upon  special  acts  of  legisla- 
tion. The  great  cities  of  the  country  consequently  exhibit  a 
great  variety  of  political  structure,  and  even  cities  in  the  same 
state  often  differ  widely  in  many  material  points  of  organiza- 
tion and  function. 

1030.  The  electors  or  freeholders  of  less  populous  districts 
are,  however,  in  most  of  the  states  empowered  to  obtain  a  sim- 
ple sort  of  urban  organization  and  considerable  urban  powers, 
by  certain  routine  processes,  from  the  courts  of  law ;  villages 
(as  they  are  called  in  New  York),  boroughs  (as  they  are  styled 
in  Pennsylvania),  toioyis  (as  they  are  sometimes  designated  in 
the  south),  ^  cities  of  the  lesser  grades  (in  states  where  they  are 
classified  according  to  population),  may  usually  get  from  the 
courts  as  of  course,  upon  proof  of  the  necessary  population 
and  of  the  consent  of  freeholders  or  electors,  the  privilege  of 
erecting  themselves  into  municipal  corporations  under  general 
acts  passed  for  the  purpose ;  just  as  private  joint-stock  compa- 
nies may  get  leave  to  incorporate  upon  showing  to  the  court 
evidence  of  the  possession  of  the  necessary  membership,  stock, 
or  paid-up  capital. 

1031.  The  town  or  borough  is  of  course,  however,  a  public,  not  a 
private,  corporation,  receiving  by  delegation  certain  powers  of  govern- 
ment ;  and  manv  states  have  left  with  their  legislatures  the  power  to 
create  all  public  corporations  by  special  act.  The  incorporation  of 
towns  is  not,  therefore,  universally  governed  by  general  statute. 

1032.  The  Authorities  of  urban  districts  thus  erected  into 
separate  corporations  succeed,  generally,  to  all  the  powers 
of  township  officers  within  their  area  and  constitute  a  local 
body  apart,  though  no  town  or  city  ever  altogether  ceases  to 
be  a  part  of  the  county  in  which  it  lies.    It  continues  to  pay 

1  The  name  town  when  used  in  New  England  always  means,  not  an 
urban  district,  but  a  township. 


THE  goveunmp:nt  of  the  united  states.  539 


county  taxes  and  its  electors  continue  to  take  their  part  in 
the  choice  of  county  officials.  The  special  organization  which 
these  statutory  towns  receive  is  unlike  that  of  either  county 
or  township  j^rincipall}'  in  this,  that  they  have  at  the  front  of 
their  government  a  representative,  quasi-legislative,  body,  an 
elected  council,  that  is,  which  within  its  sphere  is  a  law-mak- 
ing authority. 

1033.  A  common  model  of  organization  is  :  a  mayor,  president, 
or  chief  burgess  ;  a  small  council  of  trustees,  given  extensive  power  of 
making  by-laws,  considerable  power  of  taxation  for  local  improvements 
as  well  as  for  local  administration,  and  other  powers  of  local  direction 
which  quite  sharply  differentiate  it  from  the  merely  executive  boards 
often  found  in  the  townships  and  always  found  in  the  counties ;  a 
treasurer;  a  clerk;  a  collector;  a  street  commissioner;  sometimes 
overseers  of  the  poor ;  and  generally  such  other  minor  officers  as  the 
council  see  fit  to  appoint. 

1034.  Organization  of  Government  in  Cities.  —  The  differ- 
ence between  the  organization  of  these  smaller  urban  areas 
and  the  organization  of  great  cities  is  a  difference  of  complexity 
not  only  but  often  also  a  difference  of  kind.  Cities,  we  have 
seen  (sec.  953),  are  often  given  a  separate  judicial  organiza- 
tion, being  made  in  effect  separate  judicial  circuits  or  counties, 
with  their  own  courts,  sheriffs,  coroners,  and  state-attorneys. 
They  are  given  also,  of  course,  larger  councils,  with  larger 
powers ;  a  larger  corps  of  officers ;  and  greater  independence 
than  other  local  areas  possess. 

1035.  The  comicil  of  a  great  city  usually  consists  of  two  sections 
or  '  houses,'  —  a  board  of  aldermen  and  aboard  of  common  councilmen, 
differing  very  much  as  the  two  houses  of  a  state  legislature  differ, 
in  the  number  and  size  of  the  districts  which  their  members  represent. 
In  the  cities  of  New  York  State,  however,  there  is  but  a  single  legisla- 
tive chamber,  called  sometimes  the  Board  of  Aldermen,  sometimes  the 
Common  Council. 

1036.  These  boards  always  constitute  the  law-making  (or  rather 
ort/mance-making)  and  taxing  power  of  the  city  ;  and  always  until  recent 
years  they  have  been  constituted  overseers  of  administration  also,  by 
being  given  the  power  to  control  it  not  only  by  withholding  moneys, 


540       THE  GOVEKNMENT  OF  THE  UNITED  STATES. 


but  also  througli  direct  participation  in  the  power  of  appointment  to  the 
minor  city  offices,  —  all  those,  that  is  to  say,  not  filled  by  popular  elec- 
tion. The  chief  officers  of  every  city  have  usually  been  elected,  but 
all  others  have,  as  a  rule,  been  appointed  by  the  mayor  subject  to  con- 
firmation by  the  city  council.  The  tendency  of  all  very  recent  legisla- 
tion with  reference  to  the  constitution  of  city  governments  has  been  to 
concentrate  executive  power,  and  consequently  executive  responsibility, 
in  the  liands  of  the  mayor,  leaving  to  the  council  only  its  ordinance- 
making  power  and  its  function  of  financial  control.  Some  of  the  most 
recent  charters  have  even  extended  the  appointing  power  of  the  mayor 
so  as  to  include  the  most  important  executive  offices  of  the  city  admin- 
istration. It  has  been  found  impossible  to  prevent  corrupt  influences 
determining  the  action  of  councils  upon  appointments.  A  numerous 
body  will,  just  because  it  is  numerous,  be  practically  irresponsible,  and 
where  there  is  irresponsibility,  the  temptation  to  immorality  suffers 
little  check. 

1037.  School  Administration.  —  ^Mierever  the  public  school 
exists  there  we  find  the  School  District  the  administrative 
area  for  educational  purposes.  Where  the  county  system  pre- 
vails the  county  is  divided  into  school  districts  ;  where  the 
township  system  prevails  the  township  is  divided  into  school 
districts.  In  every  case  there  are  district  directors  or  trustees 
who  control  school  administration,  and  control  it  so  absolutely 
as  to  prevent  in  great  part  the  existence  of  any  uniform 
system  of  education  for  the  whole  state  ;  but  where  the  town- 
ship system  prevails  there  is  generally  more  participation  on 
the  part  of  the  people,  gathered  in  district-meeting,  in  school 
administration,  and  generally  a  fuller  power  of  local  taxation. 

1038.  In  New  England  recent  years  have  been  witnessing  the  disap- 
pearance of  the  school  district  in  some  states,  and  its  absorption  by 
the  township.  Thus  in  Maine  and  in  Connecticut  school  administration 
is  in  many  places  being  transferred  from  district  to  township  officers, 
and  the  township  is  thereby  being  made  the  school  area.  This  absorp- 
tion is  left,  however,  to  local  option. 

1039.  In  the  Northwest  schools  usually  receive  support 
from  three  distinct  sources  :  from  the  land  granted  to  each 
school  district  by  the  federal  government ;  from  a  general  state 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  541 

tax  for  education,  whose  proceeds  are  distributed  among  the 
townships,  to  be  further  distributed  by  the  township  authorities 
among  the  districts ;  and  from  district  taxes  levied  by  the  dis- 
trict directors.  In  Xew  England  there  is  generally  state  and 
township  taxation  for  the  support  of  the  schools.  In  the  south, 
under  the  county  system,  there  is  state  taxation  only,  for  the 
most  part,  save  in  certain  exceptional  localities,  and  in  the 
greater  towns. 

1040.  Nowhere  is  there  sufficient  centralization  of  control. 
State  superintendents  or  other  central  educational  authorities 
are  without  real  administrative  powers  ;  county  superinten- 
dents seldom  have  much  authority ;  township  trustees  or 
committees,  as  a  rule,  have  little  more  than  a  general  super- 
vision and  power  of  advice ;  usually  the  directors  of  the 
smallest  area  have  the  greater  part  of  the  total  of  administra- 
tive authority,  applying  their  quota  of  even  the  state  taxes 
according  to  their  own  discretion.  The  result  is,  variety  in 
the  qualifications  of  teachers,  variety  in  the  method  of  their 
choice,  variety  in  courses  of  study,  variety  in  general  efficiency. 

1041.  Taxation.  —  The  most  striking  feature  regarding 
local  taxation  in  the  United  States  is,  the  strict  limitations 
put  upon  it  by  statute.  Commonly  no  local  authorities  can 
tax  beyond  a  certain  fixed  percentage  of  the  appraised  value 
of  the  property  of  their  district.  Under  the  county  S3^stem, 
requisition  is  made  upon  the  officers  of  the  counties  for  the 
taxes  voted  by  the  legislature  for  state  purposes,  and  the 
county  boards  raise  them,  together  with  the  county  taxes,  upon 
the  basis  of  the  county  assessment.  Where  the  township 
exists,  the  process  goes  one  step  further :  requisition  is  made 
upon  the  townships  for  both  the  state  and  county  taxes,  and 
the  townships  raise  these,  together  with  their  own  taxes,  upon 
the  basis  of  the  assessment  made  by  their  own  assessors. 

1042.  An  effort  is  made  in  most  of  the  states,  however,  to 
equalize  assessments.  Some  county  authority  acts  as  a  hoard 
of  equalization  with  reference  to  the  assessments  returned  by 


542       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


the  assessors  of  the  several  townships,  and  above  the  equaliza- 
tion boards  of  the  counties  there  is  generally  a  state  board  of 
equalization,  whose  duty  it  is  to  harmonize  and  equalize,  upon 
appeal,  taxation  in  the  several  counties.  Appeals  always  lie 
from  the  local  assessors  to  these  boards  of  equalization.  The 
system  is,  however,  only  partially  successful.  It  has  proved 
practically  impossible,  under  the  present  system  of  localized 
authority,  to  avoid  great  varieties  and  inequalities  of  assess- 
ment :  local  officials  try  to  cut  down  the  shares  of  their 
districts  in  the  general  taxes  as  much  as  possible. 

1043.  General  Remarks  on  Local  Government.  —  Several  fea- 
tures observable  in  our  systems  of  local  government  taken  as  a  whole 
are  worthy  of  remark.  (1)  In  the  first  place,  outside  of  the  towns  and 
cities,  the  separately  incorporated  urban  districts,  there  is  a  marked  ab- 
sence of  representative,  law-making  bodies.  Universally  local  officers 
and  boards  have  merely  executive  powers  and  move  within  narrow  limits 
set  by  elaborate  statute  law. 

(2)  In  the  second  place,  where  there  are  local  law-making  bodies, 
they  act  under  strict  constitutional  law :  under  charters,  that  is,  pos- 
sessing thus  a  strong  resemblance,  of  kind,  to  state  legislatures  them- 
selves. 

(3)  In  the  third  place,  central  control  of  local  authorities  exists  only 
in  the  enforcement,  in  the  regular  law  courts,  of  charters  and  general 
laws  :  there  is  nowhere  any  central  Local  Government  Board  with  dis- 
cretionary powers  of  restriction  or  permission. 

(4)  In  the  fourth  place,  relatively  to  the  central  organs  of  the  state, 
local  government  is  the  most  vital  part  of  our  system :  as  compared 
either  with  the  federal  government  or  with  local  authorities,  the  central 
governments  of  the  states  lack  vitality  not  only,  but  do  not  seem  to  be 
holding  their  own  in  point  of  importance.  They  count  for  much  in 
legislation,  but,  so  far,  for  very  little  in  administration. 

The  Federal  Government. 

1044.  The  Constitution  of  the  United  States  does  not  con- 
tain all  the  rules  upon  which  the  organization  of  the  federal 
government  rests.  It  says  that  there  shall  be  a  Congress  which 
shall  exercise  the  law-making  power  granted  to  the  general 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  543 

government ;  a  President  who  shall  be  charged  with  the  exe- 
cution of  the  laws  passed  by  Congress  ;  and  a  Supreme  Court 
which  shall  be  the  highest  court  of  the  land  for  the  determi- 
nation of  what  is  lawful  to  be  done,  either  by  individuals,  by 
the  state  governments,  or  by  the  federal  authorities,  under  the 
Constitution  and  laws.  It  prescribes  also  in  part  the  organiza- 
tion of  Congress.  But  it  does  not  command  how  Congress 
shall  do  its  work  of  legislation,  how  the  President  shall  be 
enabled  to  perform  his  great  function,  or  by  what  machinery 
of  officers  and  subordinate  courts  the  Supreme  Court  shall  be 
assisted  in  the  exercise  of  its  powers.  It  leaves  all  detail  of 
operation  to  be  arranged  by  statute  :  and  statute  accordingly 
plays  a  very  important  part  in  the  organization  of  the  govern- 
ment. 

The  Constitution  thus  furnishes  only  the  great  foundations  of  the 
system.  Those  foundations  rest  upon  the  same  firm  ground  of  popular 
assent  tliat  supports  the  several  constitutions  of  the  states.  Framed  by 
a  federal  convention  and  adopted  by  representative  conventions  in  the 
states,  it  stands  altogether  apart  from  ordinary  law  both  in  character 
and  sanction. 

1045.  Amendment  of  the  Constitution.  —  The  Constitution 
cannot  be  amended  without  the  consent  of  two-thirds  of  Con- 
gress and  three-fourths  of  the  states.  Amendments  may  be 
proposed  in  one  of  two  ways:  either  (a)  two-thirds  of  the 
members  of  each  house  of  Congress  may  agree  that  certain 
amendments  are  necessary ;  or  {b)  the  legislatures  of  two-thirds 
of  the  states  may  petition  Congress  to  have  a  general  conven- 
tion called  for  the  consideration  of  amendments,  and  such  a 
convention,  being  called,  may  propose  changes.  In  both  cases 
the  mode  of  adoption  is  the  same.  Every  change  proposed 
must  be  submitted  to  the  states,  to  be  voted  upon  either  by 
their  legislatures  or  by  state  conventions  called  for  the  pur- 
pose, as  Congress  may  determine.  Any  amendment  which  is 
agreed  to  by  three-fourths  of  the  states  becomes  a  part  of  the 
Constitution. 


544       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


The  fifteen  amendments  so  far  made  to  the  Constitution  were  all  pro- 
posed by  Congress.  No  general  constitutional  convention  has  been  called 
since  the  adjournment  of  the  great  body  by  which  the  Constitution  was 
framed  in  1787. 

1046.  None  of  the  written  constitutions  of  Europe  are  so  difficult 
of  alteration  as  our  own.  In  Germany,  as  we  have  seen  (sec.  404),  a 
provision  changing  the  imperial  constitution  passes  just  as  an  ordinary 
law  would  pass,  the  only  limitation  upon  its  passage  being  that  fourteen 
negative  votes  in  the  Bundesrath  will  defeat  it  (14  out  of  58).  In  France 
(sec.  318)  constitutional  amendments  pass  as  ordinary  laws  do,  except 
that  they  must  be  adopted  by  the  two  houses  of  the  legislature  acting, 
not  separately  in  Paris,  but  jointly  at  Versailles,  as  a  National  Assembly. 
In  Switzerland  such  amendments  must  pass  both  houses  of  the  federal 
legislature  and  must  also  be  approved,  in  a  popular  vote,  by  a  majority 
of  the  voters,  and  by  a  majority  of  the  Cantons  (sec.  556).  In  Eng- 
land the  distinction  between  constitutional  law  and  statute  law  can 
hardly  be  said  to  exist  (see  sec.  730). 

See,  also,  for  a  further  exposition  of  constitutional  differences  between 
modern  states,  Chap.  XII. 

1047.  The  Federal  Territory.  —  The  territory  of  the  United 
States  is  of  two  different  sorts :  there  is  (a)  the  District  of 
Columbia,  which  the  nation  owns  as  the  seat  of  its  government, 
and  the  arsenals  and  dock-yards,  which  it  has  acquired  from 
the  states  for  military  purposes ;  and  {h)  the  great  national 
property,  the  territories,  which  the  federal  authorities  hold  in 
trust  for  the  nation  as  a  seed-bed  for  the  development  of  new 
states. 

1048.  The  District  of  Columbia.  —  It  would  have  been  in- 
convenient for  the  federal  government  to  have  no  territory  of 
its  own  on  which  to  build  its  public  offices  and  legislative  halls, 
and  where  it  could  be  independent  of  local  or  other  state  regu- 
lations. The  Constitution  itself  therefore  provided  that  Con- 
gress should  have  exclusive  authority  within  any  district  not 
more  than  ten  miles  square  which  any  state  might  give  the 
federal  government  for  its  own  uses.  Acting  upon  this  hint, 
Maryland  and  Virginia  promptly  granted  the  necessary  terri- 
tory, it  having  been  decided  to  establish  the  seat  of  govern- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  545 

nient  upon  the  Potomac.  The  home-land  of  the  federal  gov- 
ernment, thus  acquired,  was  laid  out  under  the  name  of  the 
District  of  Columbia  :  there  the  public  buildings  were  erected, 
and  there,  after  the  removal  of  the  government  offices  thither 
in  1800,  the  city  of  Washington  grew  up. 

1049.  The  first  Congress  of  the  United  States  met  in  New  York 
City ;  there  the  first  President  was  inaugurated,  and  the  organization 
of  the  new  government  effected.  In  1790  it  Avas  determined  that  the 
federal  officers  should  Hve  and  Congress  meet  in  Philadelphia  (as  the 
Continental  Congresses  and  the  congress  of  the  Confederation  had 
done)  for  ten  years ;  after  that,  in  the  district  specially  set  apart  for 
the  use  of  the  federal  government. 

1050.  The  creation  of  this  federal  home-plot  is  a  feature  peculiar  to 
our  own  federal  arrangements.  Berlin,  of  course,  is  the  capital  of 
Prussia,  not  the  exclusive  seat,  or  in  any  sense  the  property,  of  the 
imperial  government.  Berne,  too,  is  cantonal,  not  federal,  ground.  Our 
government  would  have  been  in  the  same  case  as  those  of  Germany 
and  Switzerland  had  our  federal  authorities  remained  the  guests  of 
New  York  or  Pennsylvania. 

1051.  The  several  arsenals  and  dock-ijards  established  by  the  federal 
government  in  different  parts  of  the  Union  are  built  upon  land  granted 
to  the  federal  government  by  the  states  in  which  they  lie  for  such  special 
use,  and  remain  the  property  of  that  government  only  so  long  as  used 
for  the  purposes  contemplated  in  the  grants. 

1052.  The  Territories.  —  As  the  different  parts  of  our  vast 
national  domain  have  been  settled  it  has  been  divided,  under 
the  direction  of  Congress,  into  portions  of  various  sizes,  gener- 
ally about  the  area  of  the  larger  states,  though  sometimes 
larger  than  any  state  save  Texas.  These  portions  have  been 
called,  for  want  of  a  better  name.  Territories,  and  have  been 
given  governments  constituted  by  federal  statute.  First  they 
have  been  given  governors  and  judges  appointed  by  the  Presi- 
dent ;  then,  as  their  population  has  become  numerous  and  suffi- 
ciently settled  in  its  ways  of  living,  they  have  been  given  leg- 
islatures chosen  by  their  own  people  and  clothed  with  the 
power  to  make  laws  subject  to  the  approval  of  Congress  ;  finally, 
upon  becoming  still  more  developed,  they  have  been  granted  as 


546       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


full  law-making  powers  as  the  states.  The  territorial  stage  of 
their  development  passed,  the  most  important  of  them  have 
one  by  one  been  brought  into  the  Union  as  states. 

Until  1803  the  only  territory  of  the  United  States  consisted  of  the 
lands  this  side  the  Mississippi  which  had  belonged  to  the  thirteen  orig- 
inal states  individually,  and  had  by  them  been  granted  to  the  general 
government.  In  1803  the  vast  tract  known  as  '  Louisiana  '  was  bought ; 
in  1848,  by  conquest,  and  in  1852,  by  negotiation,  the  Pacific  coast  lands 
were  acquired  from  Mexico ;  in  1842  Oregon  was  purchased  from 
England. 

1053.  The  post-offices,  federal  court  chambers,  custom  houses, 

and  other  like  buildings  erected  and  owned  by  the  general  government 
in  various  parts  of  the  country  are  held  by  the  government  upon  the 
ordinary  principles  of  ownership,  just  as  they  might  be  lield  by  a  private 
corporation.    Their  sites  are  not  separate  federal  territory. 

1054.  Congress.  —  As  in  the  states,  so  in  the  federal  govern- 
ment, the  law-making  power  is  vested  in  a  double  legislature, 
a  Congress  consisting  of  a  Senate  and  a  House  of  Eepresenta- 
tives.  Unlike  the  two  houses  of  a  state  legislature,  however, 
the  two  houses  of  Congress  have  distinct  characters  :  the  Senate 
differs  from  the  House  not  only  in  the  number  of  its  members, 
but  also  in  the  principle  of  its  composition.  It  represents 
the  federal  principle  upon  which  the  government  rests,  for 
its  members  represent  the  states.  The  House  of  Representa- 
tives, on  the  other  hand,  represents  the  national  principle  upon 
which  also  the  government  has  now  been  finally  established, 
without  threat  of  change :  its  members  represent  the  people. 

1055.  The  Senate.  —  The  Senate  consists  of  two  represen- 
tatives from  each  of  the  states  of  the  Union.  It  has,  therefore, 
the  states  being  forty-two  in  number,  eighty-four  members.^ 
Each  senator  is  elected,  for  a  term  of  six  years,  by  the  legisla- 
ture of  the  state  which  he  represents ;  and  a  state  legislature 
is  free  to  choose  any  one  as  senator  who  has  been  a  citizen  of 

1  Since  the  admission  of  Washington,  Montana,  North  Dakota,  and 
South  Dakota,  which  became  states  July  1,  1889. 


THE  GOVERNMENT  OF  THE  TTNITED  STATES.  547 


the  United  States  nine  years,  who  has  reached  the  age  of 
thirty,  and  who  is  at  the  time  of  the  election  a  resident  of  the 
state  which  he  is  chosen  to  represent. 

1056.  The  Constitution  directed  that,  immediately  after  coming  to- 
gether for  its  first  session,  the  Senate  should  divide  its  members,  by 
lot,  as  nearly  as  it  could  into  three  equal  groups  ;  that  the  members  of 
one  of  these  groups  should  vacate  their  seats  after  the  expiration  of 
two  years,  the  members  of  another  after  the  expiration  of  four  years, 
and  the  members  of  the  third  after  the  expiration  of  six  years  ;  after  which 
arrangement  had  been  accomplished,  the  term  of  every  senator  was  to  be 
six  years  as  provided.  It  was  thus  brought  about  that  one-third  of  the 
membership  of  the  Senate  is  renewed  by  election  every  two  years. 
The  result  is,  that  the  Senate  has  a  sort  of  continuous  life, — no  one 
election  year  affects  the  seats  of  more  than  one-third  of  its  members. 

1057.  The  Senate  is,  as  I  have  said,  the  federal  house  of 
Congress,  its  members  represent  the  states  as  the  constituent 
members  of  the  Union.  They  are  not,  however,  in  any  sense 
delegates  of  the  governments  of  the  states.  They  are  not 
subject  to  be  instructed  as  to  their  votes,  as  members  of  the 
German  Bundesrath  are,  by  any  state  authority  (sec.  405), 
not  even  by  the  legislatures  which  elected  them  ;  each  senator 
is  entitled  and  expected  to  vote  according  to  his  own  individ- 
ual opinion.  Senators,  therefore,  may  be  said  to  represent, 
not  the  governments  of  the  states,  but  the  people  of  the  states 
organized  as  corporate  bodies  politic. 

1058.  There  is  no  rule  which  obliges  senators  from  the  same  state  to 
vote  together,  after  the  fashion  once  imperative  in  the  Congress  of  our 
own  Confederation  (sec.  866),  and  still  imperative  in  the  German 
Bundesrath  (sec.  406),  —  each  senator  represents  his  state,  not  in  part- 
nership, but  singly. 

1059.  The  equal  representation  of  the  states  in  the  Senate,  of  course, 
more  strictly  conforms  to  the  federal  principle  than  does  the  unequal 
representation  characteristic  of  the  German  Bundesrath  (sec.  406)  ;  but 
the  rule  observed  in  Germany,  that  the  representatives  of  each  state 
must  vote  together,  must,  in  turn,  be  allowed  to  be  more  strictly  con- 
sistent with  the  idea  of  state  representation  than  is  the  rule  of  individual 
voting  followed  in  our  Senate. 


548       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

1060.  The  Vice-President  of  the  United  States  is  president 
of  the  Senate.  Unless  the  President  die,  this  is  the  only  func- 
tion of  the  Vice-President.  He  is  not  a  member  of  the  Senate, 
however  ;  he  simply  presides  over  its  sessions.  He  has  a  vote 
only  when  the  votes  of  the  senators  are  equally  divided  upon 
some  question  and  his  vote  becomes  necessary,  therefore,  for 
a  decision.    If  the  President  die,  he  becomes  President. 

1061.  Organization  of  the  Senate.  —  The  Senate  makes  its 
own  rules  of  procedure,  the  Vice-President  being  of  course 
bound  to  administer  whatever  rules  it  adopts.  Naturally  the 
internal  organization  of  the  body  is  the  matter  with  which  its 
rules  principally  concern  themselves,  and  the  most  important 
feature  of  that  organization  is  the  division  of  the  members  of 
the  Senate  into  standing  committees ;  into  small  groups,  that 
is,  to  each  of  which  is  entrusted  the  preparation  of  a  certain 
part  of  the  Senate's  business.  The  Senate  itself  would  not,  of 
course,  have  time  to  look  into  the  history  and  particulars,  the 
merits  and  bearings,  of  every  matter  brought  before  it ;  these 
committees  are,  therefore,  constituted  to  act  in  its  stead  in 
the  preliminary  examination  and  shaping  of  the  measures  to 
be  voted  on.  Whenever  any  proposal  is  made  concerning  any 
important  question,  that  proposal  is  referred  to  the  standing 
committee  which  has  been  commissioned  to  consider  questions 
of  the  particular  class  to  which  the  proposed  action  belongs. 
The  committee  takes  the  proposal  and  considers  it,  in  connec- 
tion with  all  other  pending  proposals  relating  to  the  same  sub- 
ject, and  reports  to  the  Senate  what  it  thinks  ought  to  be  done 
with  reference  to  it,  —  whether  it  is  advisable  to  take  any 
action  or  not,  and  if  it  is  advisable  to  act,  what  action  had  best 
be  taken. 

Thus  there  is  a  Committee  on  Finance,  to  which  all  questions  affect- 
ing the  revenue  are  referred ;  a  Committee  on  Appropriations,  which 
advises  the  Senate  concerning  all  votes  for  the  spending  of  moneys ;  a 
Committee  on  Railroads,  which  considers  all  railroad  questions ;  a  Com- 
mittee on  Foreign  Affairs,  which  prepares  for  consideration  all  questions 
touching  our  relations  with  foreign  governments,  etc.,  etc. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  549 

1062.  Influence  of  the  Standing  Committees. — Its  stand- 
ing committees  have,  of  course,  a  very  great  influence  upon 
the  action  of  the  Senate.  The  Senate  is  naturally  always  in- 
clined to  listen  to  their  advice,  for  each  committee  necessarily 
knows  much  more  about  the  subjects  assigned  to  it  for  consid- 
eration than  the  rest  of  the  senators  can  know.  Its  committee 
organization  may  be  said  to  be  of  the  essence  of  the  legislative 
action  of  the  Senate  :  for  of  course  the  leadership  to  which  a 
legislative  body  consigns  itself  is  of  the  essence  of  its  method 
and  must  affect,  not  the  outward  form  merely,  but  the  whole 
character  also  of  its  action.  Under  every  great  system  of  gov- 
ernment except  our  own,  leadership  in  legislation  belongs  for 
the  most  part  to  the  ministers,  to  the  Executive,  which  stands 
nearest  to  the  business  of  governing ;  it  is  a  central,  and,  as 
evidenced  by  its  results,  extremely  important  characteristic 
of  our  system  that  our  legislatures  lead  themselves,  or,  rather, 
that  they  are  led  along  the  several  lines  of  legislation  by  sepa- 
rate and  disconnected  groups  of  their  members. 

1063.  The  Senate  and  the  Executive.  —  One  of  the  chief  uses  of 
the  committees  is  to  obtain  information  for  the  Senate  concerning  the 
affairs  of  the  government.  But,  inasmuch  as  the  executive  branch  of 
the  government  is  quite  separate  from  Congress,  it  is  often  very  difficult 
for  the  Senate  to  find  out  through  its  committees  all  that  it  wishes  to 
know  about  the  condition  of  affairs  in  the  executive  departments.  The 
action  of  the  two  houses  upon  some  questions  must  of  course  be  greatly 
influenced,  and  should  be  greatly  influenced,  by  what  they  can  learn  of 
administrative  experience  in  the  departments  in  such  matters,  and  the 
Senate,  as  well  as  the  House  also,  has  the  right  to  ask  what  questions 
it  pleases  of  executive  officers,  either  through  its  committees  or  by  re- 
quiring a  written  report  to  be  made  directly  to  itself  by  some  head  of 
department.  Upon  financial  questions,  for  example,  the  Senate  or  its 
Finance  Committee  must  constantly  wish  to  know  the  experience  of 
the  Treasury.  But  it  is  not  always  easy  to  get  legislative  questions 
fully  and  correctly  answered :  for  the  officers  of  the  government  are  in 
no  way  responsible  to  either  house  for  their  official  conduct :  they  be- 
long to  an  entirely  separate  and  independent  branch  of  the  government : 
only  such  high  crimes  and  misdemeanors  as  lay  them  open  to  impeach- 


550     THE  go\t:rnment  of  the  tjkited  states. 


ment  expose  them  to  the  power  of  the  houses.  The  committees  are, 
therefore,  frequently  prevented  from  doing  their  work  of  inquiry  well, 
and  the  Senate  has  to  act  in  the  dark.  Under  other  systems  of  govern- 
ment, as  we  have  seen  (sees.  327,  328,  422  et  seq.,  464,  533,  686-9,  etc.), 
the  ministers  are  always  present  in  the  legislative  bodies  to  be  ques- 
tioned and  dealt  with  directly,  face  to  face. 

1064.  The  President  Pro  Tempore.  —  It  is  the  practice  of  the 
Senate  to  make  itself  independent  of  all  chances  of  the  Vice-President's 
absence  by  electing  statedly  from  its  own  membership  a  president  pro 
tempore,  to  act  in  case  of  the  absence  or  disability  of  the  Vice-President. 

1065.  The  House  of  Representatives.  —  The  House  of  Eep- 
resentatives  represents,  not  the  states,  but  the  people  of  the 
United  States.  It  represents  them,  however,  not  in  the  mass, 
but  by  states ;  representation  is  apportioned  among  the  states 
severally  according  to  population,  and  no  electoral  district 
crosses  any  state  boundary. 

1066.  Apportionment  of  Representatives.  —  Congress  itself 
decides  by  law  how  many  representatives  there  shall  be  ;  it 
then  divides  the  number  decided  upon  among  the  states  ac- 
cording to  population ;  after  which  each  state  is  divided  by 
its  own  legislature  into  as  many  districts  as  it  is  to  have  repre- 
sentatives, and  the  people  of  each  of  these  districts  are  entitled 
to  elect  one  member  to  the  House.  The  only  limitation  put  by 
the  Constitution  itself  upon  the  number  of  representatives  is, 
that  there  shall  never  be  more  than  one  for  every  thirty  thou- 
sand inhabitants.  The  first  House  of  Eepresentatives  had,  by 
direction  of  the  Constitution  itself,  sixty-five  members,  upon 
the  proportion  of  one  to  every  thirty-three  thousand  inhabi- 
tants. The  number  has,  of  course,  grown,  and  the  proportion 
decreased,  with  the  growth  of  population.  A  census  is  taken 
every  ten  years,  and  the  rule  is  to  effect  readjustments  and  a 
redistribution  of  representation  after  every  census. 

At  present  there  are  three  hundred  and  thirty  members  in  the  House, 
and  the  states  are  given  one  member  for  every  154,325  of  their  inhab- 
itants. In  cases  where  a  state  has  many  thousands  more  than  an  even 
number  of  times  that  many  inhabitants,  it  is  given  an  additional  mem- 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  551 


ber  to  represent  the  balance.  Thus,  if  it  have  four  times  154,325 
inhabitants,  and  a  very  large  fraction  over,  it  is  given  five  members 
instead  of  four  only.  If  any  state  have  less  than  154,325,  it  is  given 
one  member,  notwithstanding,  being  entitled  to  at  least  one  by  con- 
stitutional provision. 

There  are  at  present  seven  states  which  have  but  one  representative 
apiece;  namely,  Delaware,  Colorado,  Nevada,  Oregon,  Washington, 
Montana,  and  North  Dakota.  But  these  states,  like  the  rest,  have  two 
senators  each. 

The  reason  for  allowing  a  state  an  extra  representative  when  there 
is  a  large  fraction  remaining  over  after  a  division  of  its  population  by 
the  standard  number  154,325,  is,  of  course,  that  the  apportionment  of 
representatives  is  made  according  to  states,  and  not  by  an  even  allot- 
ment among  the  people  of  the  country  taken  as  a  whole,  and  that  under 
such  a  system  a  perfectly  equal  division  of  representation  is  practically 
impossible.  Congress  makes  the  most  equitable  arrangement  that  is 
practicable  each  time  that  it  re-apportions  the  membership  of  the  House 
upon  the  basis  of  the  decennial  census  which  Congress  directs  to  be 
taken  for  this  purpose  in  pursuance  of  a  special  constitutional  command. 

1067.  Elections  to  the  House.  —  Any  one  may  be  chosen  a 
representative  who  has  reached  the  age  of  twenty-five  years, 
has  been  a  citizen  of  the  United  States  for  seven  years,  and 
is  at  the  time  of  his  election  an  inhabitant  of  the  state  from 
one  of  whose  districts  he  is  chosen.  The  term  of  a  representa- 
tive is  two  years :  and  two  years  is  also  the  term  of  the  whole 
House ;  for  its  members  are  not  chosen  a  section  at  a  time,  as 
the  senators  are ;  the  whole  membership  of  the  House  is  re- 
newed every  second  year.  Each  biennial  election  creates  *a 
new  House.' 

1068.  Although  the  Senate  has  a  continuous  life,  we  speak  habitu- 
ally of  different  '  Congresses,'  as  if  a  new  Congress,  instead  of  a  new 
House  of  Representatives  merely,  were  chosen  biennially.  Thus  the 
Congress  of  1887-'89  was  known  as  the  fiftieth  Congress,  because  the 
House  of  Representatives  of  that  period  was  the  fiftieth  that  had  been 
elected  since  the  government  was  established. 

1069.  Federal  law  does  not  determine  who  shall  vote  for 
members  of  the  House  of  Representatives.    The  Constitution 


552       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

provides,  simply,  that  all  those  persons  in  each  state  who  are 
qualified  under  the  constitution  and  laws  of  the  state  to  vote 
for  members  of  the  larger  of  the  two  houses  of  the  state  leg- 
islature may  vote  also  for  members  of  the  House  of  Eepre- 
sentatives  of  the  United  States.  The  franchise  is  regulated, 
therefore,  entirely  by  state  law. 

1070.  In  the  fourteenth  amendment  to  the  Constitution  (passed 
1866-'68)  a  very  great  pressure  is,  by  intention  at  least,  brought  to  bear 
upon  the  states  to  induce  them  to  make  their  franchise  as  wide  as  their 
adult  male  population.  For  that  amendment  provides  that,  should  any 
state  deny  to  any  of  its  male  citizens  who  are  twenty-one  years  of  age 
the  privilege  of  voting  for  members  of  the  more  numerous  branch  of 
its  own  legislature  (and  thus,  by  consequence,  the  privilege  of  voting 
for  representatives  in  Congress),  for  any  reason  except  that  they  have 
committed  crime,  its  representation  in  Congress  shall  be  curtailed  in 
the  same  proportion  that  the  number  of  persons  so  excluded  from  the 
franchise  bears  to  the  whole  number  of  male  citizens  twenty-one  years 
of  age  in  the  state.  This  provision  has  in  practice,  however,  proved  of 
little  value.  It  is  practically  impossible  for  the  federal  authorities  to 
get  at  the  facts  necessary  to  ascertain  any  such  proportion. 

1071.  Organization  of  the  House.  —  The  House,  like  the 
Senate,  has  its  own  rules,  regulative  of  the  number  and  duties 
of  its  ofiicers  and  of  its  methods  of  doing  business  j  and  these 
rules,  like  those  of  the  Senate,  are  chiefly  concerned  with  the 
creation  and  empowering  of  a  great  number  of  standing  com- 
mittees. The  committees  of  the  House  are  not,  however, 
elected  by  ballot,  as  the  committees  of  the  Senate  are ;  they 
are  appointed  by  the  presiding  officer  of  the  House,  the 
^Speaker';  and  this  power  of  the  Speaker's  to  appoint  the 
committees  of  the  House  makes  him  one  of  the  most  powerful 
officers  in  the  whole  government.  For  the  committees  of  the 
House  are  even  more  influential  than  those  of  the  Senate  in 
determining  what  shall  be  done  with  reference  to  matters 
referred  to  them:  they  as  a  matter  of  fact  have  it  in  their 
power  to  control  almost  all  the  acts  of  the  House.  The  Senate, 
being  a  comparatively  small  body,  has  time  to  consider  fully 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  553 


the  reports  of  its  committees,  and  generally  manages  to  control 
its  own  conclusions.  But  the  House  is  too  large  to  do  much 
debating :  it  must  be  guided  by  its  committees  or  it  must  do 
nothing.  It  is  this  fact  which  makes  the  Speaker's  power  of 
appointment  so  vastly  important :  he  determines  who  shall  be 
on  the  committees,  and  the  committees  determine  what  the 
House  shall  do.    He  nominates  those  who  shape  legislation. 

1072.  The  appointing  power  of  the  Speaker  often  makes  his  election 
a  very  exciting  part  of  the  business  of  each  new  House  :  for  he  is  always 
selected,  of  course,  with  reference  to  what  he  will  do  in  constituting  the 
principal  committees. 

1073.  The  House  of  Representatives  is  not  given  a  president  by  the 
Constitution,  as  the  Senate  is.  It  elects  its  own  presiding  officer,  whose 
name,  of  '  Speaker,'  is  taken  from  the  usage  of  the  English  House  of 
Commons,  whose  president  was  so  called  because  whenever,  in  the  old 
days,  the  Commons  went  into  the  presence  of  the  king  for  the  purpose 
of  laying  some  matter  before  him,  or  of  answering  a  summons  from 
him,  their  president  was  their  spokesman  or  Speaker.  This  name  is 
used  also  in  the  legislative  bodies  of  all  the  English  colonies,  —  wherever, 
indeed,  English  legislative  practices  have  been  directly  inherited. 

1074.  The  House  has  so  many  standing  committees  that  every  repre- 
sentative is  a  member  of  one  or  another  of  them, — but  many  of  the 
committees  have  little  or  nothing  to  do :  some  of  them,  though  still 
regularly  appointed,  have  no  duties  assigned  them  by  the  rules.  The 
most  important  committee  is  that  on  Appropriations,  which  has  charge 
of  the  general  money-spending  bills  introduced  every  year  to  meet  the 
expenses  of  the  government,  and  which,  by  virtue  of  its  power  under 
the  rules  to  bring  its  reports  to  the  consideration  of  the  House  at  any 
time,  to  the  thrusting  aside  of  whatever  matter,  virtually  dominates  the 
House  by  controlling  its  use  of  its  time.  Special  appropriation  bills, 
which  propose  to  provide  moneys  for  the  expenses  of  single  depart- 
ments,—as,  for  example,  the  Navy  Department  or  the  War  Depart- 
ment,—  are,  by  a  recent  rule  of  the  House,  taken  out  of  the  hands  of 
the  Committee  on  Appropriations  and  given  to  the  committees  on  the 
special  departments  concerned.  Scarcely  less  important  than  the  Com- 
mittee on  Appropriations,  though  scarcely  so  busy  as  it,  is  the  Com- 
mittee on  Ways  and  Means,  which  has  charge  of  questions  of  taxation. 
It  is,  of  course,  to  the  appointment  of  such  committees  that  the  Speaker 
pays  most  attention.    Through  them  his  influence  is  most  potent. 


554       THE  GOVERmiENT  OF  THE  UNITED  STATES. 

1075.  Some  members  of  the  House  are  considered  to  be  entitled,  be- 
cause of  their  long  service  and  experience  in  Congress,  to  be  put  on  im- 
portant committees,  and  on  every  committee  there  must  be  representatives 
of  both  parties  in  the  House.  But  these  partial  limitations  upon  the 
Speaker's  choice  do  not  often  seriously  hamper  him  in  exercising  his 
preferences. 

1076.  The  House  has  to  depend,  just  as  the  Senate  does, 
upon  its  standing  committees  for  information  concerning  the 
affairs  of  the  government  and  the  policy  of  the  executive 
departments,  and  is  just  as  often  and  as  much  embarrassed 
because  of  its  entire  exclusion  from  easy,  informal,  and  regular 
intercourse  with  the  departments.  They  cannot  advise  the 
House  unless  they  are  asked  for  their  advice ;  and  the  House 
cannot  ask  for  their  advice  except  indirectly  through  its  com- 
mittees, or  formally  by  requiring  written  reports. 

1077.  Acts  of  Congress.  —  In  order  to  become  a  law  or  Act 
of  Congress  a  bill  must  pass  both  houses  and  receive  the  sig- 
nature of  the  President.  Such  is  the  ordinary  process  of  legis- 
lation. But  the  President  may  withhold  his  signature,  and  in 
that  case  the  measure  which  he  has  refused  to  sanction  must 
receive  the  votes  of  two-thirds  of  the  members  of  each  house, 
given  upon  a  re-consideration,  before  it  can  go  upon  the  statute 
book.  The  President  is  given  ten  days  for  the  consideration 
of  each  measure.  If  he  take  no  action  upon  it  within  the  ten 
days,  or  if  within  that  period  he  sign  it,  its  provisions  become 
law;  if  within  the  ten  days  he  inform  Congress  by  special 
message  that  he  will  not  sign  the  bill,  returning  it  to  the  house 
in  which  it  originated  with  a  statement  of  his  reasons  for  not 
signing  it,  another  passage  of  the  measure  by  a  majority  of 
two-thirds  in  each  house  is  required  to  make  it  a  law. 

There  are,  therefore,  three  ways  in  which  a  bill  may  become  law : 
either  (a)  by  receiving  the  approval  of  a  majority  in  each  house,  and 
the  signature  of  the  President,  appended  within  ten  days  after  its  pas- 
sage by  the  houses ;  or  (6)  by  receiving  the  approval  of  a  majority  in 
each  house,  and  not  being  acted  upon  by  the  President  within  ten  days 
after  its  passage  ;  or  (c)  by  receiving  the  approval  of  two-thirds  of  each 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  555 


house  after  having  been  refused  signature  by  the  President  within  ten 
days  after  its  passage  by  a  majority  in  each  house.  If  Congress  ad- 
journ before  the  expiration  of  the  ten  days  allowed  the  President  to 
consider  bills  sent  him,  such  bills  lapse  unless  he  has  signed  them  be- 
fore the  adjournment. 

1078.  Keitlier  house  can  do  any  business  (except  send  for 
absent  members  or  adjourn)  unless  a  majority  of  its  members 
are  present,  —  a  majority  being  in  the  case  of  all  our  legisla- 
tures, both,  state  and  federal,  the  necessary  quorum. 

1079.  In  the  practice  of  some  foreign  legislatures  the  quorum  is 
much  less  than  a  majority  of  the  members.  In  the  English  House  of 
Commons,  for  instance,  it  is  only  forty  members,  although  the  total  num- 
ber of  members  of  the  House  of  Commons  is  six  hundred  and  seventy. 

1080.  When  it  is  said  that  under  certain  circumstances  a  bill  must 
be  passed  by  a  vote  of  two-thirds  in  order  to  become  a  law,  it  is  under- 
stood to  mean  that  it  must  be  voted  for  by  two-thirds  of  the  members 
present,  not  necessarily  by  that  proportion  of  the  whole  membership  of 
the  body.  In  the  case  of  bills  which  the  President  refuses  to  sign,  how- 
ever, the  Constitution  expressly  says  that  it  cannot  be  made  law  unless 
a  second  time  passed  by  Iwo-thirds  of  each  House. 

1081.  A  bill  may  '  originate '  in  either  house,  unless  it  be  a 
bill  relating  to  the  raising  of  revenue.  In  that  case  it  must 
originate  in  the  House  of  Eepresentatives,  though  the  Senate 
may  propose  what  amendments  it  pleases  to  a  revenue  bill,  as 
to  any  other  which  comes  to  it  from  the  House. 

Of  course,  if  one  of  the  houses  pass  a  bill,  and  the  other  house  amend 
it,  the  changes  so  proposed  must  be  adopted  by  the  house  in  which  the 
bill  originated  before  it  can  be  sent  to  the  President  and  be  made  a  law. 
When  the  two  houses  disagree  about  amendments  they  appoint  con- 
ference committees  ;  that  is  to  say,  each  house  appoints  a  committee  to 
consult  with  a  similar  committee  appointed  by  the  other  house,  to  see 
what  can  be  done  towards  bringing  about  an  agreement  between  the 
two  houses  upon  the  points  in  dispute. 

1082.  The  Federal  Judiciary :  its  Jurisdiction. — The  Judi- 
ciary of  the  United  States  consists  of  a  Supreme  Court,  Cir- 
cuit Courts,  and  District  Courts.  Its  organization  and  func- 
tions rest  more  than  do  those  of  either  of  the  other  branches 


556       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

of  the  general  government  upon  statute  merely,  instead  of 
upon  constitutional  provision.  The  Constitution  declares  that 
"  the  judicial  power  of  the  United  States  shall  be  vested  in  one 
supreme  court,  and  in  such  inferior  courts  as  the  Congress  may, 
from  time  to  time,  ordain  and  establish,"  and  that  "  the  judges, 
both  of  the  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behavior  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation  which  shall  not  be  diminished 
during  their  continuance  in  office.'^  It  provides  also  that  the 
judicial  power  of  the  federal  government  shall  extend  to  all 
cases  in  law  or  equity  which  may  arise  under  the  Constitution, 
laws,  or  treaties  of  the  United  States ;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls ;  to  all  admi- 
ralty and  maritime  cases  ;  to  controversies  in  which  the  United 
States  is  a  party,  controversies  between  two  or  more  states, 
between  a  state  and  citizens  of  another  state  (the  state  being 
the  suitor),  between  citizens  of  different  states,  between  citi- 
zens of  the  same  state  claiming  lands  under  grants  from  differ- 
ent states,  and  between  a  state  or  its  citizens  and  foreign  states, 
citizens,  or  subjects.  And  it  directs  that  in  cases  affecting 
ambassadors,  other  public  ministers  and  consuls,  and  in  cases 
in  which  a  state  is  a  party  the  supreme  court  shall  have  origi- 
nal jurisdiction ;  while  in  all  other  cases  it  is  to  have  appellate 
jurisdiction  only,  "  with  such  exemptions,  and  under  such  regu- 
lations, as  the  Congress  shall  make." 

1083.  The  judicial  power  of  the  federal  government  is  thus  made 

to  embrace  two  distinct  classes  of  cases  :  (a)  those  in  which  it  is  mani- 
festly proper  that  its  authority,  rather  than  the  authority  of  a  state, 
should  control,  because  of  the  nature  of  the  questions  involved :  for  instance, 
admiralty  and  maritime  cases,  navigable  waters  being  within  the  exclu- 
sive jurisdiction  of  the  federal  authorities,  and  cases  arising  out  of  the 
Constitution,  laws,  or  treaties  of  the  United  States  or  out  of  conflicting 
grants  made  by  different  states,  (b)  Those  in  which,  because  of  the  na- 
ture of  the  parties  to  the  suit,  the  state  courts  could  not  properly  be  allowed 
jurisdiction,  cases  affecting,  for  instance,  foreign  ambassadors,  who  are 
accredited  to  the  government  of  the  United  States  and  with  whom  our 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  557 


only  relations  are  national  relations,  whose  j)rivileges  rest  upon  the 
sovereignty  of  the  states  they  represent ;  or  cases  in  which  the  state 
courts  could  not  have  complete  jurisdiction  because  of  the  residence 
of  the  parties ;  for  instance,  suits  arising  between  citizens  of  different 
states. 

It  is  always  open  to  the  choice  of  a  citizen  of  one  state  to  sue  a 
citizen  of  another  state  in  the  courts  of  the  latter's  own  domicile,  but 
the  courts  of  the  United  States  are  the  special  forum  provided  for  such 
cases. 

1084.  Power  of  Congress  over  the  Judiciary.  —  But  these 
provisions  of  the  Constitution  leave  Congress  quite  free  to 
distribute  the  powers  thus  set  forth  among  the  courts  for  whose 
organization  it  is  to  provide,  and  even,  if  it  so  chooses,  to  leave 
some  of  them  entirely  in  abeyance.  In  other  words,  the  Con- 
stitution defines  the  sphere  of  the  judicial  power  of  the  United 
States,  while  Congress  determines  how  much  of  that  sphere 
shall  be  occupied,  by  what  courts  and  in  what  manner,  subject 
to  what  rules  and  limitations. 

With  regard  to  the  organization  of  the  judiciary  Congress  deter- 
mines not  only  what  courts  shall  be  created  inferior  to  the  supreme 
court,  but  also  of  what  number  of  judges  the  supreme  court  shall  con- 
sist, what  their  compensation  and  procedure  shall  be,  and  what  their 
specific  duties  in  the  administering  of  justice.  It  might  also  determine, 
should  it  see  fit,  what  qualifications  should  be  required  of  all  occupants 
of  the  supreme  bench. 

1085.  The  Existing  Federal  Courts. — In  pursuance  of 
these  powers,  Congress  has  passed  the  Judiciary  Act  of  Sep- 
tember, 1789,  and  the  Acts  amendatory  thereto  upon  which 
the  national  judiciary  system  now  rests.  As  at  present  con- 
stituted, the  supreme  court  consists  of  a  chief  justice  and  eight 
associate  justices.  It  is  required  to  hold  annual  sessions  in 
the  city  of  Washington,  —  sessions  which  begin  on  the  second 
Monday  of  each  October, — any  six  of  the  justices  constitut- 
ing a  quorum.  Next  below  the  supreme  court  are  a  set  of 
circuit  courts.  These  are,  in  theory,  courts  held  in  different 
parts  of  the  country  by  the  justices  of  the  supreme  court  sit- 


558       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

ting  separately;  but  in  reality  the  business  of  the  supreme 
court  is  so  great  in  amount  and  so  engrossing  in  character  that 
the  justices  can  by  no  means  regularly  attend  the  sessions 
of  the  circuit  courts.  The  area  of  the  United  States  (exclu- 
sive of  the  territories)  is  divided  into  nine  circuits,  one  justice 
of  the  supreme  court  is  assigned,  by  the  appointment  of  the 
court  itself,  to  each  of  these  circuits,  and  in  addition 'special 
circuit  judges  are  appointed  who  act  quite  independently  of 
the  justices,  often  holding  court  separately,  in  another  part  of 
the  circuit,  at  the  same  time  that  the  justices  are  themselves 
holding  circuit  court.  The  circuits  are  divided  into  districts, 
which,  like  Congressional  districts,  never  cross  state  lines ; 
and  for  each  of  these  districts  there  has  been  established  a 
district  court.  Some  of  the  less  populous  states  constitute  each 
a  single  district;  others  are  divided  into  two,  while  still 
others  furnish  sufficient  business  to  warrant  their  being  divided 
into  three.  The  district  courts  are  the  lowest  courts  of  the 
federal  series.  The  circuit  courts  sit  in  the  several  districts  of 
each  circuit  successively,  and  the  law  requires  that  each  justice 
of  the  supreme  court  shall  sit  in  each  district  of  his  circuit  at 
least  once  every  two  years. 

1086.  The  division  of  jurisdiction  between  the  circuit  and  district 
courts  is  effected  by  act  of  Congress  ;  and,  inasmuch  as  Congress  has 
not  seen  fit  to  vest  in  the  courts  complete  jurisdiction  over  all  cases 
arising  under  the  Constitution,  laws,  and  treaties  of  the  United  States, 
but  has  given  to  each  court  power  in  certain  specified  cases,  and  left  the 
rest  in  abeyance,  it  would  be  impossible  to  give  in  brief  compass  a 
detailed  account  of  the  jurisdiction  of  the  several  courts.  It  must 
suffice  for  present  purposes  to  say,  that  the  district  courts  are  given 
cognizance  of  certain  civil  cases  within  the  grant  of  the  Constitution, 
subject  to  appeal  to  the  circuit  courts  when  the  sum  involved  exceeds 
8  50;  that  they  have  exclusive  jurisdiction  of  admiralty  and  maritime 
cases,  an  appeal  lying  to  the  circuit  courts ;  and  that  as  regards  crimes 
punishable  by  federal  law,  their  jurisdiction  is  concurrent  with  that  of 
the  circuit  courts,  except  in  case  of  capital  offences,  over  which  the 
circuit  courts  alone  have  jurisdiction.  The  circuit  courts  are  given 
appellate  jurisdiction  over  the  district  courts ;  original  jurisdiction  in 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  559 


civil  cases  such  as  are  contemplated  by  the  Constitution  when  the 
matter  in  dispute  exceeds  $500  in  value;  and  unlimited  criminal  juris- 
diction over  cases  falling  within  the  purview  of  federal  law. 

1087.  In  criminal  cases  there  is,  generally  speaking,  no  appeal. 
In  civil  cases,  appeal  from  the  district  to  the  circuit  courts  can  be  taken 
only  when  the  matter  in  dispute  exceeds  $  50  in  value,  from  the  circuit 
courts  to  the  supreme  court  only  when  it  exceeds  $5000,  except  that 
cases  of  certain  exceptional,  specified  classes  may  be  appealed  without 
respect  to  the  amount  involved.  Any  case  which  involves  the  interpre- 
tation of  the  Constitution  can  be  taken  to  the  supreme  court,  however 
small  the  sum  in  dispute. 

1088.  All  Judges  of  the  United  States  are  appointed  by  the 
President,  with  and  by  the  consent  and  advice  of  the  Sen- 
ate, to  serve  during  good  behavior.  There  are  in  all  sixty 
federal  judicial  districts,  and  for  each  of  these  a  special  dis- 
trict judge  is  appointed,  though  in  large,  thinly  populated  sec- 
tions of  the  country  it  has  sometimes  been  customary  to  have 
one  judge  hold  court  in  several  districts. 

1089.  Federal  judges  of  the  inferior  courts  are,  so  to  say,  inter- 
changeable. When  necessary,  a  district  judge  can  go  into  another 
district  than  his  own  and  either  aid  or  replace  the  district  judge  there ; 
a  district  judge  may  also,  when  it  seems  necessary  for  the  dispatch  of 
business,  sit  as  circuit  judge  ;  and  a  circuit  judge  may,  in  his  turn,  upon 
occasion  hold  district  court.  This  seems  the  less  anomalous  when  it  is 
remembered  that  the  earliest  arrangement  was,  for  the  district  judges 
to  hold  circuit  court  always  in  the  absence  of  the  justices  of  the  supreme 
court  from  circuit,  or  in  conjunction  witli  them,  and  that  special  circuit 
judges  were  appointed  only  because  of  the  necessity  for  more  judges 
consequent  upon  a  rapid  increase  of  federal  judicial  business. 

1090.  The  salary  of  the  chief  justice  of  the  United  States  is  $10,500, 
that  of  each  of  the  other  justices,  $  10,000.  Circuit  court  judges  re- 
ceive $6000,  and  district  judges  from  $3500  to  $5000. 

1091.  The  District  Attorney  and  the  Marshal.  —  Almost 
every  district  has  its  own  federal  district  attorney  and  its  own 
United  States  marshal,  both  of  whom  are  appointed  by  the 
President.  It  is  the  duty  of  the  federal  district  attorney  to 
prosecute  all  offenders  against  the  criminal  laws  of  the  United 


560       THE  GOYERNIVIENT  OF  THE  UNITED  STATES. 


States,  to  conduct  all  civil  cases  instituted  in  his  district  in 
behalf  of  the  United  States  and  to  appear  for  the  defence  in 
all  cases  instituted  against  the  United  States,  to  appear  in 
defence  of  revenue  ofiB.cers  of  the  United  States  where  they 
are  sued  for  illegal  action,  etc.  The  marshal  is  the  ministerial 
ofiB.cer  of  the  federal  circuit  and  district  courts.  He  executes 
all  their  orders  and  processes,  arrests  and  keeps  all  prisoners 
charged  with  criminal  violation  of  federal  law,  etc.,  and  has 
within  each  state  the  same  powers,  within  the  scope  of  United 
States  law,  that  the  sheriff  of  that  state  has  under  the  laws  of 
the  state.    He  is  the  federal  sheriff. 

1092.  The  orders  and  processes  of  a  state  court  are  binding  and 
operative  only  within  the  state  to  which  the  court  belongs ;  the  orders 
and  processes  of  United  States  courts,  on  the  contrary,  are  binding  and 
operative  over  the  entire  Union. 

1093.  The  courts  of  the  District  of  Columbia  and  of  the  terri- 
tories are  courts  of  the  United  States,  but  they  are  not  federal  courts ; 
they  bear,  so  far  as  their  jurisdiction  is  concerned,  the  character  of 
state  and  federal  courts  united.  The  only  laws  of  the  territories  and  of 
the  District  of  Columbia  are  laws  of  the  United  States,  inasmuch  as  the 
legislatures  of  the  territories  act  under  statutory  grant  from  Congress.^ 
The  territorial  legislatures  are,  so  to  say,  commissioned  by  Congress ; 
and  the  laws  which  they  pass  are  administered  by  judges  appointed  by 
the  President. 

1094.  The  territorial  courts  and  the  courts  of  the  District  of  Colum- 
bia do  not  come  within  the  view  of  the  Constitution  at  all.  With  refer- 
ence to  them  Congress  acts  under  no  limitations  of  power  whatever. 
The  rule  of  tenure  during  good  behavior,  for  example,  which  applies  to 
all  judges  of  the  United  States  appointed  under  the  Constitution,  does 
not  apply  to  judges  of  the  territories  or  of  the  District  of  Columbia. 
The  term  of  office  of  territorial  judges  is  fixed  at  four  years.  The 
federal  courts  sitting  in  the  states,  and  the  United  States  courts  estab- 
lished in  the  territories,  ought  not  to  be  thought  of  as  parts  of  the  same 
system,  although  the  supreme  court  is  the  highest  tribunal  of  appeal 
for  both. 

1  Congress  early  enacted  that  the  people  of  the  District  of  Columbia 
should  continue  to  live  under  the  laws  which  had  previously  had  force  in 
the  District  when  owned  by  Virginia  and  Maryland. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  561 

1095.  The  procedure  of  a  federal  court  follows,  as  a  rule, 
the  procedure  of  the  courts  of  the  state  in  which  it  is  sitting ; 
and  state  law  is  applied  by  the  courts  of  the  United  States  in 
all  matters  not  touched  by  federal  enactment.  Juries  are  con- 
stituted, testimony  taken,  argument  heard,  etc.,  for  the  most 
part,  according  to  the  practice  of  the  state  courts  ;  so  that,  so 
far  as  possible,  both  as  regards  the  outward  forms  observed 
and  the  principles  applied,  a  federal  court  is  domestic,  not  for- 
eign, to  the  state  in  which  it  acts. 

1096.  It  is  not  within  the  privilege  of  Congress  to  delegate  to  the 
courts  of  the  states  the  functions  of  courts  of  the  United  States  ;  for 
the  Constitution  distinctly  provides  that,  besides  the  supreme  court, 
there  shall  be  no  court  authorized  to  exercise  the  judicial  powers  of  the 
United  States  except  such  as  Congress  "  may,  from  time  to  time,  ordain 
and  establish."  The  adoption  of  state  courts  by  Congress  is,  of  course, 
excluded  by  plain  implication.  A  very  interesting  contrast  is  thus 
established  between  the  federal  judicial  system  of  the  United  States 
and  the  federal  judicial  systems  of  Germany  and  Switzerland  (sees. 
436,  559). 

1097.  The  Federal  Executive.  —  "The  executive  power," 
says  the  Constitution,  "  shall  be  vested  in  a  President  of  the 
United  States  of  America,"  who  "  shall  hold  his  office  during 
a  term  of  four  years."  As  a  matter  of  fact,  of  course,  it  has 
proved  practically  impossible  for  a  single  man  actually  to  exer- 
cise the  whole  executive  power ;  the  President  is  assisted  by 
numerous  heads  of  departments  to  whom  falls  so  large  a  part 
of  the  actual  duties  of  administration  that  it  has  become  sub- 
stantially correct  to  describe  the  President  as  simply  presiding 
over  and  controlling  by  a  general  oversight  the  execution  of 
the  laws  ;  which  is  doubtless  all  that  the  sagacious  framers 
of  the  Constitution  expected. 

The  Vice-President  has  no  part  in  the  executive  function. 
He  is  the  President's  substitute,  and  is  chosen  at  the  same  time 
and  in  the  same  manner  that  the  President  is  chosen. 

1098.  Election  of  a  President.  —  The  choice  is  not  direct 


562       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


by  the  people,  but  indirect,  tlirougli  electors  chosen  by  the 
people.  In  each  state  there  are  elected  as  many  electors  as 
the  state  has  representatives  and  senators  in  Congress,  the 
"  electoral  vote "  of  each  state  being  thus  equal  to  its  total 
representation  in  Congress. 

The  electors  are  voted  for  on  the  Tuesday  following  the  first  Monday 
of  November  in  the  year  which  immediately  precedes  the  expiration  of 
a  presidential  term.  They  assemble  in  the  several  state  capitals  to  cast 
their  votes  on  the  first  Wednesday  of  the  December  following.  Their 
votes  are  counted  in  the  houses  of  Congress  sitting  in  joint  session  on 
the  second  "Wednesday  of  the  following  February.  The  President  is 
inaugurated  on  the  fourth  of  March  next. 

1099.  Practical  Operation  of  the  Plan :  the  Party  Conven- 
tions. —  The  theory  of  this  arrangement  is  that  each  elector 
really  exercises  an  independent  choice  in  the  votes  which  he 
casts,  voting  for  the  men  whom  his  own  judgment  has  selected 
for  the  posts  of  President  and  Vice-President.  In  fact,  how- 
ever, the  electors  only  register  party  decisions  made  during  the 
previous  summer  in  national  conventions.  Each  party  holds 
during  that  summer  a  great  convention  composed  of  party  dele- 
gates from  all  parts  of  the  Union,  and  nominates  the  candidates 
of  its  choice  for  the  presidency  and  vice-presidency.  The  elec- 
tors, again,  are,  in  their  turn,  chosen  according  to  the  selections 
of  party  conventions  in  the  several  states  ;  and  the  party  which 
gains  the  most  electors  in  the  November  elections  puts  its  can- 
didates into  office  through  their  votes,  which  are  cast  as  a  matter 
of  course  in  obedience  to  the  will  of  the  party  conventions. 
The  party  conventions  are  by  far  the  most  important  part  of 
the  machinery  of  election. 

1100.  Qualifications  for  the  Office  of  President.  —  "  Xo  per- 
son, except  a  natural  born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  constitution  shall  be 
eligible  to  the  office  of  president ;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  563 


United  States."  ^  In  respect  of  age  there  is  liere  only  a  slight 
advance  ujDon  the  qualification  required  of  a  senator ;  in  respect 
of  citizenship  it  is  of  course  very  much  more  rigorous  than  in 
the  case  of  members  of  Congress. 

1101.  It  is  provided  by  the  Constitution  that  the  compensation  re- 
ceived by  judges  of  the  United  States  shall  not  be  diminished  during 
their  terms  of  office ;  concerning  the  President,  whose  tenure  of  office 
is  much  briefer,  it  is  provided  that  his  compensation  shall  neither  be 
diminislied  nor  increased  during  his  term. 

1102.  Duties  and  Powers  of  the  President.  —  It  is  the  duty 
of  the  President  to  see  that  the  laws  of  the  United  States  are 
faithfully  executed;  he  is  made  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  states  when  called  into  the  actual  service  of  the  United 
States ;  he  is  to  regulate  the  foreign  relations  of  the  country, 
receiving  all  foreign  ministers  and  being  authorized  to  make 
treaties  with  the  assent  of  two-thirds  of  the  Senate  ;  and  he  is 
to  appoint  and  commission  all  officers  of  the  federal  govern- 
ment. The  Constitution  makes  all  his  appointments  subject 
to  confirmation  by  the  Senate ;  but  it  also  gives  Congress  the 
power  to  remove  from  the  superintending  view  of  the  Senate 
the  filling  of  all  inferior  official  positions  by  vesting  the  ap- 
pointment of  such  subordinate  officers  as  it  thinks  proper  in 
the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments.  As  a  matter  of  fact,  legislation  has  relieved  the 
Senate  of  the  supervision  of  the  vast  majority  of  executive 
appointments.  The  confirmation  of  the  Senate  is  still  neces- 
sary to  the  appointment  of  ambassadors,  other  public  ministers, 
and  consuls,  of  judges  of  the  courts  of  the  United  States,  of  the 
chief  departmental  officials,  of  the  principal  post-office  and 
customs  officers,  —  of  all  the  more  important  servants  of  the 
general  government :  but  these  of  course  constitute  only  a 
minority  of  all  the  persons  receiving  executive  appointment : 
the  majority  are  appointed  without  legislative  oversight. 

1  Constitution,  Art.  II.,  sec.  i.,  par.  5. 


564       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

1103,  The  unfortunate,  the  demoralizing  influences  which  hare  been 
allowed  to  determine  executive  appointments  since  President  Jackson's 
time  have  affected  appointments  made  subject  to  the  Senate's  confirma- 
tion hardly  less  than  those  made  without  its  co-operation :  senatorial 
scrutiny  has  not  proved  effectual  for  securing  the  proper  constitution 
of  the  public  service.  Indeed,  the  "courtesy  of  the  Senate,"  —  the  so- 
called  "  courtesy  "  by  which  senators  allowed  appointments  in  the  several 
states  to  be  regulated  by  the  preference  of  the  senators  of  the  predomi- 
nant party  from  the  states  concerned,  —  at  one  time  promised  to  add 
to  the  improper  motives  of  the  Executive  the  equally  improper  motives 
of  the  Senate. 

1104.  Reform  of  Methods  of  Appointment  to  Federal 
Offices.  —  The  attempts  which  have  been  made  in  recent 
years  to  reform  by  law  the  system  of  appointments  have  not 
been  directed  towards  the  higher  offices  filled  with  the  consent 
of  the  Senate,  but  only  towards  those  inferior  offices  which  are 
filled  by  the  single  authority  of  the  President  or  of  the  heads 
of  the  executive  departments ;  have  touched  in  their  results, 
indeed,  only  the  less  important  offices.  The  Act  which 
became  law  in  J une,  1883,  and  which  is  known  as  the  "  Pen- 
dleton Act,"  may  be  said  to  cover  only  ^  employees ' :  it  does 
not  affect,  that  is,  any  person  really  in  authority,  though  it  does 
affect  a  large  body  of  federal  servants.  It  provides,  in  brief, 
for  the  appointment  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  of  a  Civil  Service  Commission  con- 
sisting of  three  persons,  not  more  than  two  of  whom  shall  be 
adherents  of  the  same  political  party,  under  whose  recommen- 
dation as  representatives  of  the  President,  selections  shall 
be  made  for  the  lower  grades  of  the  federal  service  upon  the 
basis  of  competitive  examination.  It  forbids  the  solicita- 
tion of  money  from  employees  of  the  government  for  political 
uses  and  all  active  party  service  on  the  part  of  members  of  the 
civil  administration :  it  endeavors,  in  short,  to  "  take  the  civil 
service  out  of  politics." 

1105.  The  carrying  out  of  those  portions  of  the  Act  which  relate  to 
the  method  of  choosing  public  officers  is,  however,  entirely  subject  to 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  565 


the  pleasure  of  the  President,  The  Constitution  vests  in  him  the  power 
of  appointment,  subject  to  no  limitation  except  the  possible  advice  and 
consent  of  the  Senate.  Any  Act  which  assumes  to  prescribe  the  man- 
ner in  which  the  President  shall  make  his  choice  of  public  servants 
must,  therefore,  be  merely  advisory  :  the  President  may  accept  its  direc- 
tions or  not  as  he  pleases.  The  only  force  that  can  hold  him  to  the 
observance  of  its  principle  is  the  force  of  public  opinion. 

1106.  The  Presidential  Succession.  —  In  case  of  the  removal, 
death,  resignation,  or  disability  of  both  the  President  and  Vice-Presi- 
dent, the  office  of  President  is  to  be  filled  ad  interim  by  the  Secretary 
of  State,  or,  if  he  cannot  act,  by  the  Secretary  of  the  Treasury,  or,  in 
case  he  cannot  act,  by  the  Secretary  of  War ;  and  so  on,  in  succession, 
by  the  Attorney  General,  the  Postmaster  General,  the  Secretary  of  the 
Navy,  or  the  Secretary  of  the  Interior.  None  of  these  officers  can  act, 
however,  unless  he  have  the  qualifications  as  to  age,  citizenship,  and  resi- 
dence required  by  the  Constitution  of  occupants  of  the  presidential  chair. 

Until  this  arrangement  was  made,  by  act  of  Congress  in  1886,  the 
'  succession '  passed  first  to  the  president  pro  tempore  of  the  Senate, 
and,  failing  him,  to  the  Speaker  of  the  House  of  Representatives.  This 
was  found  inconvenient  because  there  are  intervals  now  and  again  when 
there  is  neither  a  president  pro  tempore  of  the  Senate  nor  a  Speaker  of  the 
House. 

1107.  Relations  of  the  Executive  to  Congress.  —  The  only 
provisions  contained  in  the  Constitution  concerning  the  rela- 
tion of  the  President  to  Congress  are  these :  that  "  he  shall, 
from  time  to  time,  give  to  the  congress  information  of  the 
state  of  the  union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient "  ;  and  that 
"  he  may,  on  extraordinary  occasions,  convene  both  houses,  or 
either  of  them,"  in  extra  session,  "and,  in  case  of  disagree- 
ment between  them,  with  respect  to  the  time  of  adjournment, 
he  may  adjourn  them  to  such  time  as  he  shall  think  proper  " 
(Art.  II.,  sec.  iii.).  His  power  to  inform  Congress  concerning 
the  state  of  the  union  and  to  recommend  to  it  the  passage  of 
measures  is  exercised  only  in  the  sending  of  annual  and  special 
written  ^  messages.' 

1108.  Washington  and  John  Adams  interpreted  the  clause  to  mean 
that  they  might  address  Congress  in  person,  as  the  sovereign  in  Eng- 


566       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

land  may  do :  their  annual  communications  to  Congress  were  spoken 
addresses.  But  Jefferson,  the  third  President,  being  an  ineffective 
speaker,  this  habit  was  discontinued  and  the  fashion  of  written  mes- 
sages was  inaugurated  and  firmly  established.  (Compare  sec.  679.) 
Possibly,  had  the  President  not  so  closed  the  matter  against  new  adjust- 
ments, this  clause  of  the  Constitution  might  legitimately  have  been 
made  the  foundation  for  a  much  more  habitual  and  informal,  and  yet 
at  the  same  time  much  more  public  and  responsible,  interchange  of 
opinion  between  the  Executive  and  Congress.  Having  been  interpreted, 
however,  to  exclude  the  President  from  any  but  the  most  formal  and 
ineffectual  utterance  of  perfunctory  advice,  our  federal  executive  and 
legislature  have  been  shut  off  from  co-operation  and  mutual  confidence  to 
an  extent  to  which  no  other  modern  system  furnishes  a  parallel.  In  all 
other  modern  governments  the  heads  of  the  administrative  departments 
are  given  the  right  to  sit  in  the  legislative  body  and  to  take  part  in  its 
proceedings.  The  legislature  and  executive  are  thus  associated  in  such 
a  way  that  the  ministers  of  state  can  lead  the  houses  without  dictating 
to  them,  and  the  ministers  themselves  be  controlled  without  being  mis- 
understood,—  in  such  a  way  that  the  two  parts  of  the  government  which 
should  be  most  closely  co-ordinated,  the  part,  namely,  by  which  the 
laws  are  made  and  the  part  by  which  the  laws  are  executed,  may  be  kept 
in  close  harmony  and  intimate  co-operation,  with  the  result  of  giving 
coherence  to  the  action  of  the  one  and  energy  to  the  action  of  the  other. 

1109.  The  Executive  Departments.  —  The  Constitution  does 
not  provide  for  the  creation  of  executive  departments,  but  it 
takes  it  for  granted  that  such  departments  will  be  founded. 
Thus  it  says  (Art.  II.,  sec.  ii.,  par.  1,  2)  that  the  President 
"  may  require  the  opinion,  in  writing,  of  the  principal  officer  in 
each  of  the  executive  departments,  upon  any  subject  relating 
to  the  duties  of  their  respective  offices,"  and  that  Congress 
may  vest  the  appointment  of  such  inferior  officers  as  it  may 
see  fit  "in  the  heads  of  departments."  The  executive  depart- 
ments consequently  owe  their  creation  and  organization  to 
statute  only. 

1110.  The  first  Congress  erected  four  such  departments, 
namely,  the  departments  of  State,  of  the  Treasury,  of  War, 
and  of  Justice.  In  1798  the  management  of  the  navy,  which 
had  at  first  been  included  in  the  duties  of  the  War  Department, 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  567 

was  entrusted  to  a  special  Department  of  the  Xavy ;  in  1829 
the  post  office,  which  had  been  a  subdivision  of  the  Treasury, 
was  created  an  independent  Department;  and  in  1849  a  De- 
partment of  the  Interior  was  organized  to  receive  a  miscellany 
of  functions  not  easy  to  classify,  except  in  the  feature  of  not 
belonging  properly  within  any  department  previously  created. 

A  similar  character,  it  is  interesting  to  remark,  may  be  attributed  to 
some  corresponding  department,  bearing  either  this  name  or  a  name  of 
like  significance,  in  almost  every  other  modern  government.  There  is 
everywhere  a  department  of  state  to  receive  functions  not  otherwise 
specially  disposed  of. 

1111.  In  1889  there  was  added  to  these  a  Department  of 
Agriculture.  We  have,  thus,  at  present,  eight  executive  de- 
partments, viz. :  (1)  A  Department  of  State,  which  is  what 
would  be  called  in  most  other  governments  our  "  foreign  office,'' 
having  charge  of  all  the  relations  of  the  United  States  with 
foreign  countries. 

1112.  (2)  A  Department  of  the  Treasury,  which  is  the 
financial  agency  of  the  government,  and  whose  functions  cover 
the  collection  of  the  public  revenues  accruing  through  the  cus- 
toms duties  and  the  taxes  on  whiskey  and  tobacco,  their  safe 
keeping  and  their  disbursement  in  accordance  with  the  appro- 
priations from  time  to  time  made  by  Congress  ;  the  auditing  of 
the  accounts  of  all  departments  ;  the  supervision  and  regulation 
of  the  national  banks  and  of  the  currency  of  the  United  States ; 
the  coinage  of  money ;  and  the  collection  of  certain  industrial 
and  other  statistics. 

This  Department,  therefore,  contains  within  it  the  treasury  and  comp- 
trolling  functions  which  in  the  states  are  separated. 

1113.  To  this  Department  is  attached  also  the  Bureau  of  Printing 
and  Engraving,  by  which  all  the  printing  of  public  documents,  etc.,  is 
done. 

1114.  (3)  A  Department  of  War,  which  has  charge  of  the 
military  forces  of  the  Union ; 


568       THE  GOYERNMEXT  OF  THE  UNITED  STATES. 


1115.  (4)  A  Department  of  the  Navy,  which  has  charge 
of  the  naval  forces  of  the  general  government ; 

1116.  (5)  A  Department  of  Justice,  from  which  emanates 
all  the  legal  advice  of  which  the  federal  authorities  stand  in 
need  at  any  time,  and  to  which  is  entrusted  the  supervision  of 
the  conduct  of  all  litigation  in  which  the  United  States  may 
be  concerned.  To  it  are  subordinate  all  the  marshals  and 
district  attorneys  of  the  United  States,  —  all  ministerial,  non- 
judicial law  officers,  that  is,  in  the  service  of  the  government. 
It  may  be  compendiously  described  as  the  lawyer  force  of  the 
government.  It  is  presided  over  by  an  Attorney  General,  all 
the  other  departments,  except  the  Post  Office,  being  under 
'  Secretaries. ' 

1117.  (6)  A  Post  Office  Department,  under  a  Postmaster 
General,  which  is  charged  Avith  the  carrying  and  delivery  of 
letters  and  parcels,  with  the  transmission  of  money  by  means 

of  certain  '  money  orders '  and  notes  issued  by  the  Department,  ^ 
or  under  cover  of  a  careful  system  of  registration,  and  with 
making  the  proper  postal  arrangements  with  foreign  countries. 

These  arrangements  with  foreign  countries  may  be  made  without  the 
full  formalities  of  treaty,  the  consent  of  the  President  alone  being  neces- 
sary for  the  ratification  of  international  agreements  made  by  the  Post- 
master General  for  the  facilitation  of  the  functions  of  the  Department. 
The  United  States  is  a  member  of  the  Universal  Postal  Union,  to  which 
most  of  the  civilized  countries  of  the  world  belong.  The  central  ofiice 
of  this  Union  is  under  the  management  of  the  Swiss  administration. 
Its  administrative  expenses  are  defrayed  by  contribution  of  the  various 
governments  belonging  to  the  Union. 

1118.  (7)  A  Department  of  the  Interior,  which  has  charge 
(i.)  Of  the  taking  of  the  Census,  as  from  time  to  time  ordered 
by  Congress  in  accordance  with  the  provision  of  the  Constitu- 
tion (Art.  I.,*  sec.  i.,  par.  3)  which  makes  it  the  duty  of  Con- 
gress to  have  a  census  taken  every  ten  years  as  a  basis  for  the 
redistribution  of  representation  in  the  House  of  Representa- 
tives among  the  several  states;  (ii.)  Of  the  management  of 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  569 


the  public  lands  {General  Land  Office)-^  (iii.)  Of  the  govern- 
ment's dealings  with  the  Indians,  a  function  which  is  exercised 
through  a  special  Commissioner  of  Indian  Affairs  in  Washing- 
ton and  various  agencies  established  in  different  parts  of  the 
Indian  country. 

It  is  through  this  Indian  Bureau,  for  example,  that  all  laws  concern- 
ing the  settlement,  assistance,  or  supervision  of  the  tribes  are  adminis- 
tered, as  well  as  all  laws  concerning  the  payment  of  claims  made  upon 
the  federal  government  for  compensation  for  depredations  committed 
by  the  Indians,  and  laws  touching  the  distribution  and  tenure  of  land 
among  the  Indians. 

(iv.)  Of  the  paying  of  pensions  and  the  distribution  of  bounty 
lands,  a  function  which  it  exercises  through  a  special  Commis- 
sioner of  Pensions  ;  (v.)  Of  the  issuing  and  recording  of  patents 
and  the  preservation  of  the  models  of  all  machines  patented : 
for  the  performance  of  these  duties  there  is  a  Patent  Office; 
(vi.)  Of  the  keeping  and  distribution  of  all  public  documents 
{Superintendent  of  Public  Documents)  ;  (vii.)  Of  the  auditing 
of  the  accounts  of  certain  railway  companies,  to  which  the 
United  States  government  has  granted  loans  or  subsidies,  and 
the  enforcing  of  the  laws  passed  by  Congress  with  reference  to 
such  roads  {Office  of  the  Commissioner  of  Railroads)  ;  (viii.) 
Of  the  collection  of  statistical  and  other  information  concern- 
ing education,  and  the  diffusion  of  the  information  so  collected 
for  the  purpose  of  aiding  the  advance  and  systematization  of 
education  throughout  the  country  {The  Office  of  Education)  ; 
(ix.)  Of  the  superintendence  of  the  government  hospital  for 
the  insane  and  the  Columbia  Asylum  for  the  Deaf  and  Dumb. 

Many  of  these  subdivisions  of  the  Interior,  though  in  strictness  sub- 
ject to  the  oversight  and  control  of  the  Secretary  of  the  Interior,  have 
in  reality  a  very  considerable  play  of  independent  movement. 

1119.  (8)  A  Department  of  Agriculture,  which  is  charged 
with  furthering  in  every  possible  way,  by  the  collection  of 
information  not  only,  but  also  by  the  prosecution  of  scientific 


570       THE  GOVERNMENT  OF  THE  UNITED  STATES. 

investigation  with  reference  to  the  diseases  of  plants,  etc.,  the 
agricultural  interests  of  the  country,  and  under  which  there  is 
maintained  a  special  Forestry  Division. 

1120.  Set  apart  to  themselves,  and  therefore  without  repre- 
sentation in  the  Cabinet,  there  are  (1)  The  Department  of 
Labor,  which  is  charged  with  the  collection  and  publication 
of  statistical  and  other  information  touching  the  condition  and 
interests  of  laborers,  — information,  for  instance,  bearing  upon 
the  relations  of  labor  and  capital,  hours  of  labor,  the  hous- 
ing of  laborers,  rates  of  wages  and  methods  of  payment,  the 
food  and  expenses  of  laborers,  etc.  (2)  The  Interstate  Com- 
merce Commission,  a  semi-judicial  body  by  which  the  federal 
statutes  forbidding  unjust  discriminations  in  railway  rates  in 
interstate  freight  or  passenger  traffic,  prohibiting  certain  sorts 
of  combinations  in  railroad  management,  etc.,  are  interpreted 
and  enforced.  (3)  The  Civil  Service  Commission  by  which 
the  Act  mentioned  in  sec.  1104  is  administered.  (4)  The  Com- 
mission of  Fish  and  Fisheries,  whose  duty  it  is  to  make  the 
necessary  investigations  and  prosecute  the  necessary  measures 
for  the  preservation,  improvement,  and  increase  of  the  stock 
of  fish  in  our  rivers  and  lakes  and  on  our  coasts. 


Some  Represextative  Authorities. 

On  the  institutional  development  of  the  colonial  period  : 

Hildreth,  R.,  "History  of  the  United  States  from  the  discovery  of 

America  to  the  End  of  the  Sixteenth  Congress"  (1821).  First 

Series.   3  vols.   8vo.   New  ed.   N.  Y.,  1879. 
Bancroft,  George,  "  History  of  the  United  States,"  from  the  discovery 

of  America  to  the  adoption  of  the  federal  Constitution.    6  vols. 

8vo.   X.  Y. 

Doyle,  J.  A.,  "English  Colonies  in  America,"  to  the  end  of  the  seven- 
teenth century.   3  vols.  Svo.  N.  Y.,  1882,  1888. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  571 


Lodge,  H.  C,  "A  Short  History  of  the  English  Colonies  in  America." 
N.Y.,  1881. 

Frotliingham,  "The  Rise  of  the  Republic  of  the  United  States."  Bos- 
ton, 1872. 

Curtis,  G.  T.,  "  History  of  the  Origin,  Formation,  and  Adoption  of 
the  Constitution  of  the  United  States."  2  vols.  X.  Y.,  1854,  1858. 
In  this  connection  only  the  first  volume  is  pertinent. 

Scott,  E.  G.,  "  Development  of  Constitutional  Liberty  in  the  English 
Colonies  of  America."    X.Y.,  1882. 

On  the  formation  of  the  Union  : 

Curtis,  G.  T.,  as  above.   Vol.  II. 
Bancroft,  George,  as  above.   Vol.  VI. 

Fiske,  John,  "  The  Critical  Period  of  American  History."  Boston, 
1888. 

Johnston,  Alexander,  "  The  First  Century  of  the  Constitution,"  in  the 

New  Princeton  Review,  September,  1887. 
McMaster,  J.  B.,  "  History  of  the  People  of  the  United  States."  Vol. 

I.   ^.Y.,  1883. 

Pitkin,  Timothy,  "  Political  and  Civil  History  of  the  United  States  of 
America  from  their  Commencement  to  the  Close  of  the  Adminis- 
tration of  Washington."    2  vols.   8vo.    Xew  Haven,  1828. 

Adams,  H.  B.,  "  Maryland's  Influence  upon  Land  Cessions  to  the 
United  States,"  in  Johns  Hopkins  University  Studies  in  Histori- 
cal and  Political  Science.    Third  Series,  Xo.  I. 

American  Statesmen  Series:  volumes  on  John  Adams  and  Thomas 
Jefferson,  by  /.  T.  Morse,  Jr.  :  on  Alexander  Hamilton  and  on 
George  Washington  by  H.  C.  Lodge  ;  on  Patrick  Henry  by  M.  C. 
Tyler ;  and  on  James  Madison  by  S.  H.  Gay. 

On  institutional  development  under  the  Constitution  : 
Hildreth,  R.,  as  above.    Second  Series.   3  vols. 

Schouler,  James,  "  History  of  the  United  States  of  America  under  the 

Constitution."    4  vols.   Washington,  1880-1887. 
V.  Hoist,  H.,  "  The  Constitutional  and  Political  History  of  the  United 

States."    Translated  from  the  German  by  A.  B.  Mason,  J.  J. 

Lalor,  and  Paul  Shorey.    5  vols.   8vo.   Chicago,  1876-1887. 
Johnston,  Alexander,  "History  of  American  Politics."    N.  Y.,  revised 

ed.,  1882. 


572       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


Adams,  Henry  (editor),  "Documents  relating  to  Xew  England  Fed- 
eralism."   Boston,  1877. 

Benton,  T.  H.,  "  Thirty  Years'  View ;  or,  A  History  of  the  Working 
of  the  American  Government  for  Thirty  Years,  1820-1850."  2 
vols.   8vo.   N.  Y.,  1854-1856. 

American  Statesmen  Series:  volumes  on  J.  Q.  Adams  by  /.  T.  Morse, 
Jr.;  on  T.  H.  Benton  and  on  Gouverneur  Morris  by  Theodore 
Roosevelt;  on  J.  C.  Calhoun  by  H.  v.  Hoist :  on  H.  Clay  by  Carl 
Schurz ;  on  A.  Gallatin  by  /.  A.  Stevens;  on  A.  Jackson  by  W. 
G.  Sumner ;  on  John  Marshall  by  A.  B.  Magruder ;  on  J.  Mon- 
roe by  D.  C.  Gilman;  on  J.  Randolph  by  H.  Adams;  on  M. 
Yan  Buren  by  E.  M.  Shepard ;  and  on  D.  AVebster  by  H.  C. 
Lodge. 

jRooseye/^,  Theodore,  "  The  Winning  of  the  West."  2  vols.  N".  Y., 
1889. 

Winsor^  Justin  (editor),  "  Narrative  and  Critical  History  of  America." 

Vol.  VII.    Boston,  1888.    Contains  full  bibliographical  notes. 
Sumner,  W.  G.,  "Politics  in  America,  1776-1876."     A  centennial 

summary.    North  American  Review,  January,  1876,  p.  47. 

On  the  character  of  the  federal  government  under  the  Constitution  : 

The  controversial  literature  preceding  and  accompanying  the  War 
of  Secession  may  be  found,  representatively,  in 

Jefferson,  Thomas,  "  Works." 
Adams,  John,  "Works." 
Calhoun,  J.  C,  "  Works." 
Webster,  Daniel,  "  Speeches." 

Stephens,  Alexander,  "A  Constitutional  View  of  the  War  between  the 

States."    2  vols.   8vo.   Philadelphia,  1868. 
Centz,  P.  C.  (B.  J.  Sage),  "The  Republic  of  Republics."  Boston, 

4  ed.,  1881. 

Hurd,  J.  C,  "  The  Theory  of  Our  National  Existence."    Boston,  1881. 
Brownson,  O.  A.,  "The  American  Rex3ublic;  its  Constitution,  Ten- 
dencies, and  Destiny."    N.  Y.,  1866  and  1886. 

Disassociated  with  the  issues  of  the  Civil  War  are  the  following : 

The  Federalist,  by  Alexander  Hamilton,  James  Madison,  and  John 
Jay. 


THE  GOVERNMENT  OF  THE  UNITED  STATES.  573 


Story,  Joseph,  "  Commentaries  on  the  Constitution."  Edited  by 
T.  M.  Cooley. 

Cooley,  T.  M.,  "  Treatise  on  the  Constitutional  Limitations  which  rest 
upon  the  Legislative  Power  of  the  States  of  the  American  Union." 
Boston,  2  ed.,  1871. 

"  The  General  Principles  of  Constitutional  Law  in  the  United 
States  of  America."    Boston,  1880. 

V.  Hoist,  H.,  "  Das  Staatsrecht  der  Vereinigten  Staaten  von  America  " 
in  Marquardsen's  "  Handbuch  des  Oeffentlichen  Rechts."  Frei- 
burg in  B.,  1885.  Translated  under  the  title,  "The  Constitu- 
tional Law  of  the  United  States  of  America."  By  A.  B.  Mason. 
Chicago,  1887. 

de  Tocqueville,  A.,  "  Democracy  in  America."    Translated  by  Henry 

Reeve.    London,  new  ed.,  1875. 
Dicey,  A.  V.,  "  Lectures  Introductory  to  the  Study  of  the  Law  of  the 

Constitution."    London,  1886.    This  book,  though  a  commentary 

on  the  English  Constitution,  contains  much  excellent  comment 

also  on  our  own. 

Bryce,  James,  "  The  American  Commonwealth."  2  vols.  London, 
1888. 

Maine,  Sir  H.  S.,  "Popular  Government."  IST.  Y.,  1886,  especially 
Chap.  IV. 

Wilson,  Woodrow,  "  Congressional  Government,  A  Study  in  Ameri- 
can Politics."    Boston,  1885. 

On  the  governments  of  the  States  and  Local  Government : 

Jameson,  J.  F.,  "Introduction  to  the  Constitutional  and  Political 
History  of  the  Individual  States."  In  the  Johns  Hopkins  Uni- 
versity Studies  in  Historical  and  Political  Science.  Fourth 
Series,  No.  V. 

Poore,  Ben :  P.,  "  Federal  and  State  Constitutions,  Colonial  Charters, 
and  other  Organic  Laws  of  the  United  States."  2  vols.  Wash- 
ington, 1877. 

Stimson,  F.  J.,  "American  Statute  Law."    A  Digest.    Boston,  1886. 

Johns  Hopkins  University  Studies  in  Historical  and  Political  Science: 
First  Series :  "  An  Introduction  to  American  Institutional  His- 
tory," hy  E.  A.  Freeman;  "  The  Germanic  Origin  of  New  Eng- 
land Towns,"  by  H.  B.  Adams;  "Local  Government  in  Illinois," 


574       THE  GOVERNMENT  OF  THE  UNITED  STATES. 


hy  A.  Shaw;  "Saxon  Tithingmen  in  America,"  and  "  Xorman 
Constables  in  America,"  by  H.  B.  Adams;  "Local  Government 
in  Michigan  and  the  Northwest,"  by  E.  W.  Bemis ;  "Parish  In- 
stitutions of  Maryland,"  by  E.  Ingle;  "Old  Maryland  Manors," 
hjJoJin  Johnson;  "Village  Communities  of  Cape  Anne  and  Salem," 
by  H.  B.  Adams;  "The  Genesis  of  a  New  England  State,"  by 
Alexander  Johnston;  "Local  Government  and  Free  Schools  in 
South  Carolina,"  by  B.  J.  Ramage.  Second  Series :  "  Samuel 
Adams,  the  Man  of  the  Town  Meeting,"  by  /.  K.  Hosmer ;  "In- 
stitutional Beginnings  in  a  Western  State,"  by  Jesse  Macy ; 
"Town  and  County  Government  in  the  English  Colonies  of 
North  America,"  by  E.  Channing.  Third  Series :  "  Virginia  Local 
Institutions,"  by  E.  Ingle;  "Local  Institutions  of  Maryland,"  by 
L.  W.  Wilhelm ;  "Influence  of  the  Proprietors  in  founding  the 
State  of  New  Jersey,"  by  Austin  Scott ;  "  American  Constitutions," 
by  Horace  Davis.  Fourth  Series :  "  Town  Government  in  Rhode 
Island,"  by  W.  E.  Foster;  "The  Narragansett  Planters,"  by  E. 
Channing  ;  "Pennsylvania  Boroughs,"  by  W.  P.  Holcomb ;  "The 
Puritan  Colony  at  Annapolis,  Maryland,"  by  D.  R.  Randall; 
"  The  Land  System  of  the  New  England  Colonies,"  by  M.  Egles- 
ton. 

Parser,  Joel,  'Jalfrey  Address.'  1873.  "Origin,  Organization,  and 
Influence  of  the  Towns  of  New  England,"  in  Proceedings  Mass. 
Hist.  Soc,  June,  1886. 

Carter,  C.  H.,  "Connecticut  Boroughs."  New  Haven  Hist.  Soc,  Vol. 
IV. 

Spencer,  D.,  "Local  Government  in  Wisconsin."    Wis.  Hist.  Soc'y's 

Collections,  Vol.  11. 
"Shires  and  Shire  Towns  in  the  South."     Lippincott's  Magazine. 

August,  1882. 

Ford,  W.  C,  "  The  American  Citizen's  Manual."  Part  I.  N.  Y.,  1882. 
Hosmer,  J.  K.,  "  Samuel  Adams,"  in  American  Statesmen  Series.  Bos- 
ton, 1885. 


XII. 


SUMMARY:    CONSTITUTIONAL  AND  ADMINIS- 
TEATIVE  DEVELOPMENTS. 

1121.  Continuity  of  Development.  —  From  the  dim  morning 
hours  of  history  when  the  father  was  king  and  priest  down  to 
this  modern  time  of  history's  high  noon  when  nations  stand 
forth  full-grown  and  self-governed,  the  law  of  coherence  and 
continuity  in  political  development  has  suffered  no  serious 
breach.  Human  choice  has  in  all  stages  of  the  great  world- 
processes  of  politics  had  its  part  in  the  shaping  of  institutions  ; 
but  it  has  never  been  within  its  power  to  proceed  by  leaps  and 
bounds  :  it  has  been  confined  to  adaptation,  altogether  shut  out 
from  raw  invention.  Institutions,  like  morals,  like  all  other 
forms  of  life  and  conduct,  have  had  to  wait  upon  the  slow,  the 
almost  imperceptible  formation  of  habit.  The  most  absolute 
monarchs  have  had  to  learn  the  moods,  observe  the  traditions, 
and  respect  the  prejudices  of  their  subjects  ;  the  most  ardent 
reformers  have  had  to  learn  that  to  outrun  the  sluggish  masses 
was  to  render  themselves  powerless.  Revolution  has  always 
been  followed  by  reaction,  by  a  return  to  even  less  than  the 
normal  speed  of  political  movement.  Political  growth  refuses 
to  be  forced ;  and  institutions  have  grown  with  the  slow 
growth  of  social  relationships  ;  have  changed  in  response,  not 
to  new  theories,  but  to  new  circumstances.  The  evolutions  of 
politics  have  been  scarcely  less  orderly  and  coherent  than  those 
of  the  physical  world. 


576 


SUMMARY. 


1122.  The  order  discoverable  in  institutional  develop- 
ment is  not  of  course  the  order  of  perfect  uniformity :  institu- 
tions, like  the  races  which  have  developed  them,  have  varied 
infinitely  according  to  their  environment.  Climate,  war,  geo- 
graphical situation  have  shaped  them  :  the  infinite  play  of 
human  thought,  the  infinite  many-sidedness  of  human  character 
have  been  reflected  in  them.  But  the  great  stages  of  develop- 
ment have  remained  throughout  clear  and  almost  free  from 
considerable  irregularities.  Tested  by  history's  long  measure- 
ments, the  lines  of  advance  are  seen  to  be  singularly  straight. 

1123.  Course  of  Development  in  the  Ancient  World. — If 
the  bond  of  kinship  was  at  first  clear  and  unmistakable,  it 
must  ere  long  have  become  much  less  defined  in  the  broadened 
Family.  When  the  Family  became  merged  in  the  still  wider 
Communit}',  solidarity  remained  and  a  strong  sense  of  kinship, 
but  the  realit}'  of  kinship  had  no  doubt  largely  departed,  and 
law  had  begun  to  take  on  a  public  character,  to  bear  the  sanc- 
tion of  all  rather  than  the  sanction  of  a  single  supreme  person. 
Kinship  was  typified  still  in  the  hereditary  character  of  the 
kingship  ;  but  the  king  was  now  the  representative  of  the  com- 
munity rather  than  its  master.  The  Community  developed 
into  the  city-state :  and  further  than  this  the  ancient  peoples 
did  not  go.  In  Eome  and  in  the  great  city-states  of  Greece 
the  conception  of  citizenship  supplants  the  idea  of  kinship  :  the 
State  becomes  virtually  personified  in  the  thought  of  the 
time:  it  is  the  centre  of  civic  affection  and  the  object  of  all 
civic  virtue :  the  public  officer  rules  not  in  his  own  name  but 
in  the  name  of  the  State.  Around  Rome  at  last  there  grows 
up  a  vast  Empire  ;  but  it  is  Rome's  Empire,  — the  world  has 
fallen  into  the  hands  of  a  city,  and  the  only  citizenship  that 
Caracalla  can  bestow  is  the  citizenship  of  Rome.  This  city- 
statehood  is  the  last  word  of  the  ancient  world  in  politics. 

1124.  The  Feudal  System  and  the  Modern  Monarch. — 
When  the  G-ermans  emerge  we  have  the  State  in  a  new  aspect. 
Xations  are  moving  in  arms,  and  the  Host  is  now  the  State. 


SUMMARY. 


577 


Commanders  of  Hosts  are  the  kings  of  the  new  order  of  things. 
The  Host  settles  on  the  lands  of  the  old  Eoman  dominions, 
and  that  military  tenure  is  developed  which  we  have  learned 
to  call  the  Feudal  System.  This  Feudal  System^  when  it  has 
worked  its  perfect  work,  in  such  countries  as  France  and  Ger- 
many, brings  forth  still  a  third  type  of  kingship :  we  presently 
have  the  king  who  owns  his  kingdom  as  supreme  feudal  lord : 
the  king  who,  having  absorbed  fief  after  fief,  at  last  possesses 
his  kingdom  by  a  perfected  legal  title,  whose  realm  is  his 
estate.  This  is  the  king  who  becomes  the  sole  source  of  law 
and  of  justice,  the  king  who,  in  our  day,  grants  out  of  his 
abundant  grace  rights  and  constitutions  to  his  people. 

1125.  England's  Contribution.  —  Where  the  Feudal  System 
fails  of  its  full  fruitage,  as  in  England,  where  freehold  estates 
are  not  blotted  out,  where  tenure  of  the  king  as  overlord  is  a 
theory  but  never  a  reality,  and  where  local  self-government  ob- 
tained a  lasting  rootage  in  the  national  habit,  political  devel- 
opment takes  another  course.  There  political  liberty  abides 
continually,  in  one  form  or  another,  Avitli  the  people,  and  it  is 
their  operative  power  which  gives  to  liberty  expansion,  and 
which  finally  creates  the  constitutional  state,  the  limited  mon- 
archy, the  free  self-governing  nation.  Out  of  the  fief  grew  the 
kingdom  ;  out  of  the  freehold  and  local  self-government  grew 
the  constitutional  state ;  out  of  the  constitutional  state  grew 
that  greatest  of  political  developments,  the  free,  organic,  self- 
conscious,  self-directing  nation,  with  its  great  organs  of  popular 
representation  and  its  constitutional  guarantees  of  liberty. 

1126.  The  Romans  and  the  English.  —  In  this  history  of 
development  two  nations  stand  forth  pre-eminent  for  their 
political  capacity  :  the  Roman  nation,  which  welded  the  whole 
ancient  world  together  under  one  great  organic  system  of  gov- 
ernment, and  which  has  given  to  the  modern  world  the  ground- 
work of  its  systems  of  law;  and  the  English  nation,  which 
gave  birth  to  America,  which  has  "  dotted  over  the  whole  sur- 
face of  the  globe  with  her  possessions  and  military  posts,"  and 


578  SUIVCMARY. 

from  which,  all  the  great  nations  of  our  time  have  borrowed 
much  of  their  political  thought  and  more  of  their  political 
practice.  And  what  is  most  noteworthy  is  this,  that  these 
two  nations  closely  resemble  each  other,  not  only  in  the 
mental  peculiarities  which  constitute  the  chief  element  of 
their  political  strength,  but  also  in  the  institutional  founda- 
tions which  they  have  successively  laid  for  their  political 
achievements. 

1127.  Likenesses  between  the  Two  Imperial  Nations.  — 

Both  have  been  much  stronger  in  creating  and  working  insti- 
tutions than  in  explaining  them :  both  of  them  have  framed 
such  a  philosophy  as  they  chose  to  entertain  '  after  the  fact ' : 
neither  has  been  too  curious  in  examining  the  causes  of  its 
success  or  in  working  out  logical  sequences  of  practice.  Above 
all,  neither  has  suffered  any  taint  of  thoroughness  to  attach 
itself  to  its  political  methods.  Slowly,  and  without  much  con- 
cern for  theories  of  government,  each  has  made  compromise 
its  method,  adaptation  its  standing  procedure.  Illogical,  unim- 
aginative their  mode  of  procedure  must  be  said  to  have  been 
throughout,  a  mode  for  slow,  practical  men,  without  speed  or 
boldness.  Revolution  has  never  fallen  within  their  calcula- 
tions ;  even  change  they  have  seldom  consciously  undertaken. 
If  old  institutions  must  perish,  they  must  perish  within  the 
Roman  or  English  system  by  decay,  by  disuse,  not  by  deliber- 
ate destruction :  if  new  institutions  must  be  constructed,  they 
must  be  grafted  on  the  old  in  such  wise  that  they  may  at  least 
seem  to  be  parts  of  the  same  stock,  and  may  partake  as  largely 
as  may  be  of  that  one  vitalizing  sap,  old  custom.  As  the 
Roman  Senate,  from  being  the  chief  motive  power  of  the 
state,  came  at  last  to  exercise  only  such  prerogatives  as 
the  peox-)le  and  the  people's  officers  suffered  it  to  retain,  so 
the  English  House  of  Lords,  from  being  the  single  coadjutor 
of  the  king  in  legislation,  has  been  reduced  to  a  subordinate 
part  which  it  plays  only  upon  sufferance,  and  all  without  any 
sudden  or  premeditated  step  of  revolution.    As  the  consular 


SUMMARY. 


579 


power  in  Kome  was  slowly  pared  down  to  be  dealt  out  in  parts 
to  plebeian  officials,  so  has  the  royal  power  in  England  been 
piece  by  piece  transferred  to  the  hands  of  ministers,  the  peo- 
ple's representatives.  The  whole  political  method  of  the  two 
peoples  is  the  same :  the  method  of  change  so  gradual,  so  tem- 
pered with  compromise  and  discretion,  so  retarded  and  moder- 
ated by  persistent  habit  that  only  under  the  most  extraordinary 
pressure  is  it  ever  hastened  into  actual  revolution. 

1128.  Popular  Initiative  in  Rome  and  England.  —  Doubt- 
less much  of  this  likeness  of  temperament  and  method  is  due 
to  the  fact  that  both  in  Eome  and  in  England  it  has  been  the 
nation,  and  not  merely  a  small  governing  class,  which  has 
been  behind  political  change.  The  motive  power  was  popular 
initiative :  the  process  of  change  was  the  labored  process  of 
legislation,  the  piece-meal  construction  which  is  to  be  com- 
pounded out  of  the  general  thought.  Measures  have  had  in 
both  cases  to  be  prepared  for  the  general  acceptance ;  and 
popular  action,  wherever  it  is  the  wont  for  the  people  to  act, 
is  always  conservative  action.  A  king's  law-making  is  apt  to 
be  rapid,  thorough,  consistent;  but  a  nation's  law-making, 
devised  and  struggled  for  piece  by  piece,  cannot  be.  The  ple- 
beians in  Rome,  fighting  inch  by  inch  towards  the  privileges 
which  they  coveted,  the  people  in  England  making  their  way 
by  long-protracted  efforts  towards  the  control  they  desired  to 
exercise,  have  had  to  advance  with  painful  slowness,  and  to  be 
content  with  one  piece  at  a  time  of  the  power  they  strove  for. 

1129.  Rome*s  Change  of  System  under  the  Empire. — 
With  the  full  establishment  of  imperial  forms  of  government 
Rome  lost  the  conservative  habit  of  her  republican  period. 
The  methods  of  the  first  emperor,  indeed,  were  slow  and 
cautious  in  the  highest  degree  :  Augustus  avoided  all  show  or 
name  of  imperial  power :  carefully  regardful  of  republican 
sentiment  and  spirit,  which  he  knew  to  be  not  yet  extinct,  he 
simply  accumulated  to  himself  one  by  one  every  republican 
office,  professing  the  while  merely  to  exercise  for  somewhat 


580 


SUMMARY. 


extended  periods,  —  periods  which  steadily  lengthened  from 
terms  of  years  to  tenure  for  life,  —  but  by  free  gift  of  the 
Senate  and  people,  the  old  oflBices  of  self-government.  But 
later  emperors  were  by  no  means  so  careful  or  so  considerate 
of  popular  prejudices  :  their  power  was  open,  bold,  oftentimes 
even  wanton.  And  with  these  changes  in  the  nature  of  the 
government  came  of  course  radical  changes  in  political  method: 
there  came  the  wilful  creation  of  new  offices  known  to  no 
Roman  custom,  the  constant  breach  of  old  practices  hallowed 
by  immemorial  Roman  habit,  —  the  whole  familiar  process,  in 
brief,  of  arbitrary  power.  What  Rome  gained  thus  in  disci- 
pline, in  military  efficiency,  she  lost  of  course  in  political 
capacity.  For  that  capacity  so  characteristic  of  the  Romans 
and  the  English,  the  capacity  namely  for  political  organization, 
is  beyond  question  inseparably  connected  with  popular  initia- 
tive, with  national  self-direction,  with  self-government.^ 

1130.  Fundamental  Contrast  between  English  and  Roman 
Political  Method.  —  The  most  striking  contrast  between  the 
English  and  the  Romans  consists  in  a  vital  and  far-reach- 
ing difference  in  political  organization.  What  I  have  said 
touching  the  national  action  of  the  two  peoples,  the  slow,  con- 
servative concert  of  the  people  as  a  whole  in  the  origination 
and  effectuation  of  policy  (sees.  1127-8)  must  be  understood 
in  different  senses  in  the  two  cases.  It  was  true  of  the  Romans 
only  during  the  period  of  the  Republic,  and  while  the  Roman 
people  could  take  a  direct  part  in  affairs.  The  Teuton  brought 
into  force,  particularly  in  England,  the  principle  of  representa- 
tion, that  organization  by  representative  assemblies  which 
enabled  the  people  to  act  over  wide  areas  through  trusted  men 
elected  to  speak  and  act  in  their  stead,  and  which  thus  enabled 
the  organization  of  the  nation  to  extend  without  loss  of 
vitality.    Of  such  methods  the  Roman  knew  nothing.  Only 

1  The  student  ought  of  course  to  test  in  detail  this  likeness  between 
Rome  and  England.  I  can  here  only  indicate  in  the  most  rapid  way  the 
line  of  study. 


SUMMARY. 


581 


the  people  of  tlie  city  of  Rome  backed  and  gave  form  to 
Roman  legislation,  for  the  Roman  had  conceived  of  no  system 
of  action  by  a  delegation  of  the  law-making  power.  The  equal 
and  concerted  action  of  widely  diffused  populations  through 
the  instrumentality  of  representation  was  utterly  unknown  to 
the  ancient  world.  The  county  court  with  its  reeve  and  four 
selected  men  from  each  township,  the  parliament  with  its 
knights  from  the  shire  and  its  burgesses  from  the  towns, 
instrumentalities  so  familiar  everywhere  now  that  the  world 
has  gone  to  school  to  the  English  in  politics,  were  for  a  long 
time  peculiar  to  England  in  their  best  features.  They  were 
the  peculiar  fruit  of  Teutonic  political  organization  where  that 
organization  had  grown  most  apart  from  the  Roman  influence, 
in  England,  not  on  the  Continent,  penetrated  as  the  continental 
lands  were  everywhere  by  the  Roman  example.  Rome  had 
had  no  similar  means  of  holding  her  vast  populations  together 
in  active  political  co-operation  and  living  union.  Therefore,  as 
her  conquests  spread,  her  system  became  more  and  more  cen- 
tralized and  autocratic.  The  English  could  hold  populations 
together,  however  large  they  might  be,  by  means  of  representa- 
tive assemblies ;  but  the  Roman,  who  knew  no  method  of 
admitting  scattered  peoples  to  a  part  in  the  central  govern- 
ment, who  knew  no  popular  assemblies  except  those  in  which 
all  citizens  should  be  actually  present  and  vote,  could  hold  an 
extended  empire  together  only  by  military  force  and  the  stern 
discipline  of  subordination. 

This  has  much  to  do  with  the  next  topic. 

1131.  The  Development  of  Legislatures.  —  Perhaps  the 
most  distinguishing  feature  of  modern  as  compared  with 
ancient  politics  is  the  difference  between  the  sphere,  the  mode, 
and  the  instrumentalities  of  legislation  now,  and  the  character 
and  methods  of  legislation  among  the  classical  nations.  Repre- 
sentative law-making  bodies  are  among  the  commonplace 
institutions  of  the  political  world  as  we  know  it :  but  no  such 
assembly,  as  I  have  already  said,  was  ever  dreamed  of  by  any 


582 


SUMMARY. 


ancient  politician.  The  ancient  world  was  absolutely  without 
representative  assemblies,  and  knew  nothing  of  the  principle 
of  representation.  Every  citizen  either  took  direct  part  in 
legislation  or  took  no  part  in  it  at  all :  if  he  could  attend  the 
assembly  he  could  use  his  vote ;  if  he  could  not,  his  vote  was 
simply  of  no  use  to  him.  There  was  no  thought  of  the  possi- 
bility of  his  acting  by  proxy.  Aristotle  believed,  consequently, 
that  no  free  state  could  exist  with  a  wide  territory  or  a  popu- 
lation so  scattered  as  to  be  unable  to  attend  the  assemblies. 
The  Roman  citizen  outside  of  Eome,  away  from  her  assemblies, 
had  privileges  but  had  no  operative  powers. 

What  the  Greeks  and  Romans  did  not  know  at  all  the 
Teuton  seems  to  have  known  almost  from  the  first :  represen- 
tation is  one  of  the  most  matter-of-course  devices  of  his  native 
polity,  and  from  him  the  modern  world  has  received  it. 

1132.  Our  early  colonial  history  furnishes  at  least  two  xery  curious 
examples  of  a  transition  from  primary  to  representative  assemblies.  The 
earliest  legislature  of  Maryland  was  a  primary  assembly  composed  of 
all  the  freemen  of  the  colony ;  to  the  next  assembly  some  were  allowed 
to  send  proxies  ;  and  before  representation  was  finally  established  there 
appeared  the  singular  anomaly  of  a  body  partly  representative,  partly 
primary,  at  least  one  freeman  insisting  upon  attending  in  person  (Doyle, 
I.,  pp.  287-290).  The  other  example  is  to  be  found  in  the  history  of 
Rhode  Island,  whose  citizens  for  some  time  insisted  upon  meeting  at 
Newport  in  primary  assembly  for  the  purpose  of  electing  the  persons 
who  were  to  represent  them  in  the  colonial  legislature,  thus  as  it  were 
jointly  inaugurating  the  session,  to  use  Mr.  Foster's  words,  and  then 
leaving  the  legislature  "  to  run  for  itself  for  the  remainder  of  the  time  " 
(W.  E.  Foster,  Town  Government  in  Rhode  Island,  p.  26). 

1133.  The  Powers  of  a  Representative. — But  only  very 
modern  times  have  settled  the  theory  of  a  representative's 
power.  The  strong  tendency  among  all  vigorously  political, 
all  self-reliant  self-governing  peoples  has  been  to  reduce  their 
representatives  to  the  position  and  functions  of  mere  delegates, 
bound  to  act,  not  under  the  sole  direction  of  their  own  judg- 
ments, but  upon  instruction  from  their  constituents.  The 


SUMMAKY. 


583 


better  thought  of  later  times  has,  however,  declared  for  a 
far  different  view  of  the  representative's  office,  has  claimed  for 
the  representative  the  privilege  of  following  his  own  judgment 
upon  public  questions,  of  acting,  not  as  the  mouthpiece  but 
rather  as  the  fully  empowered  substitute  of  his  constituents. 

1134.  Scope  of  Modern  Legislation.  —  The  question  is  of 
the  greater  importance  because  of  the  extraordinary  scope  of 
legislation  in  the  modern  state,  and  of  the  extreme  complexity 
nowadays  attaching  to  all  legislative  questions.  Time  was, 
in  the  infancy  of  national  representative  bodies,  when  the  rep- 
resentatives of  the  people  were  called  upon  simply  to  give  or 
refuse  their  assent  to  laws  prepared  by  a  king  or  by  a  privi- 
leged class  in  the  state ;  but  that  time  is  far  passed.  The 
modern  representative  has  to  judge  of  the  gravest  affairs  of 
government,  and  has  to  judge  as  an  originator  of  policies.  It 
is  his  duty  to  adjust  every  weighty  plan,  preside  over  every 
important  reform,  provide  for  every  passing  need  of  the  state. 
All  the  motive  power  of  government  rests  with  him.  His  task, 
therefore,  is  as  complex  as  the  task  of  governing,  and  the  task 
of  governing  is  as  complex  as  is  the  play  of  economic  and  social 
forces  over  which  it  has  to  preside.  Law-making  now  moves 
with  a  freedom,  now  sweeps  through  a  field  unknown  to  any 
ancient  legislator ;  it  no  longer  provides  for  the  simple  needs 
of  small  city-states,  but  for  the  necessities  of  vast  nations, 
numbering  their  tens  of  millions.  If  the  representative  be  a 
mere  delegate,  local  interests  must  clash  and  contend  in  legis- 
lation to  the  destruction  of  all  unity  and  consistency  in  policy ; 
if,  however,  the  representative  be  not  a  mere  delegate,  but  a 
fully  empowered  member  of  the  central  government,  coherence, 
consistency,  and  power  may  be  given  to  all  national  move- 
ments of  self-direction. 

1135.  The  Making,  Execution,  and  Interpretation  of  Law. 
—  The  question  of  the  place,  character,  and  functions  of  legis- 
lation is  in  our  days  a  very  different  question  from  any  that 
faced  the  ancient  politician.    The  separation  of  legislative, 


584 


SUMMARY. 


judicial,  and  executive  functions  is  a  quite  modern  develop- 
ment in  politics,  and  we  have  questions  to  settle  concerning 
the  integration  of  these  three  functions  which  could  not  have 
arisen  in  any  ancient  state.  In  the  early  days  when  the  family 
was  the  state;  in  the  later  days  when  the  political  organiza- 
tion, although  it  had  lost  the  father's  omnipotent  jurisdiction, 
still  rested  upon  the  idea  of  kinship  ;  and  even  in  still  later 
times  when  forms  of  government  inherited  from  these  primi- 
tive conceptions  still  persisted,  all  the  functions  of  government 
were  vested  in  a  single  individual  or  in  a  single  body  of  indi- 
viduals, in  a  father-king  or  in  an  assembly  of  elders.  Even 
in  highly  developed  free  states  like  Athens  no  adequate  or 
complete  recognition  of  any  essential  difference  in  the  charac- 
ter of  the  several  duties  of  the  judge,  the  executive  officer,  and 
the  law-maker  is  discoverable.  It  was  a  very  modern  concep- 
tion that  governmental  functions  ought  to  be  parcelled  out 
according  to  a  careful  classification.  The  ancient  assembly 
made  laws,  elected  officers,  passed  judgment  upon  offenders 
against  the  laws,  and  yet  was  conscious  of  no  incongruity.  It 
was  before  the  day  when  anyone  could  be  shocked  by  such  a 
confusion  of  powers. 

1136.  Modern  politicians  are,  however,  greatly  shocked  by 
such  confusions  of  function.  They  insist,  as  of  course,  that 
every  constitution  shall  separate  the  three  ^  departments '  of 
government,  and  that  these  departments  shall  be  in  some  real 
sense  independent  of  each  other  5  so  that  if  one  go  wrong  the 
others  may  check  it  by  refusing  to  co-operate  with  it.  In  no 
enlightened  modern  system  may  the  legislator  force  the  judge, 
or  the  judge  interfere  with  the  privileges  of  the  legislator,  or 
judge  or  legislator  wrongly  control  the  executive  officer. 

1137.  Charters  and  Constitutions.  —  This  division  of  powers 
between  distinct  branches  of  government  has  been  greatly  em- 
phasized and  developed  by  the  written  constitutions  so  charac- 
teristic of  modern  political  practice.  These  constitutions  have  by 
no  means  all  had  the  same  history,  and  they  differ  as  widely  in 


SUMMARY. 


585 


character  as  in  origin ;  but  in  every  case  they  give  sharp  defi- 
niteness  to  the  organs  and  methods  of  government  which  illus- 
trate the  most  salient  points  of  modern  political  development. 
Our  own  constitutions,  as  we  have  seen  (sec.  860),  originated  in 
grants  from  the  English  crown,  for  which  were  substituted,  in 
the  days  following  the  war  for  Independence,  grants  by  the 
people.  Originally  royal,  they  are  now  national  charters  :  and 
they  have  been  kept  close  to  the  people,  firmly  based  upon 
their  direct  and  explicit  sanction.  The  constitutions  of  Switz- 
erland bear  a  like  character :  proceeding  from  the  people,  they 
rest  in  all  points  upon  the  people's  continuing  free  choice. 

1138.  In  France,  on  the  contrary,  the  people  have  as  yet 
had  no  direct  part  in  constitution-making.  French  constitu- 
tions have  in  all  cases  been  both  made  and  adopted  by  con- 
stituent assemblies  :  at  no  stage  are  the  people  called  upon  for 
their  opinion,  — not  even  after  the  constitution  has  been  for- 
mulated :  its  adoption,  like  its  construction,  is  a  matter  for  the 
constituent  assembly  alone :  it  is  given  to  the  people,  not  ac- 
cepted by  them.  The  present  constitution  of  the  Eepublic  was 
even  framed  and  adopted  by  a  convention  which  could  show  no 
claim  to  have  been  elected  as  a  constituent  assembly  (sec.  311). 

1139.  Creation  vs.  Confirmation  of  Liberties  by  Constitu- 
tion. —  This  process,  of  the  gift  of  a  constitution  to  the  people 
by  an  assembly  of  their  own  choice,  may  be  said  to  be  interme- 
diate between  our  own  or  the  Swiss  practice,  on  the  one  hand, 
and  the  practice  of  the  monarchical  states  of  Europe,  on  the 
other,  whose  constitutions  are  the  gift  of  monarchs  to  their 
people.  In  many  cases  they  have  been  forced  from  reluctant 
monarchs,  as  Magna  Charta  was  wrung  by  the  barons  from 
John:  but  whether  created  by  stress  of  revolution,  as  in  so 
many  states  in  1848  (sec.  396),  or  framed  later  and  at  leisure, 
as  in  Prussia  (sec.  396),  they  have  been  in  the  form  of  royal 
gifts  of  right,  have  not  confirmed  but  created  liberties  and 
privileges. 

1140.  Our  own  charters  and  constitutions  have,  on  the  con- 


586 


SUMMARY. 


trary,  been  little  more  than  formal  statements  of  rights  and 
immunities  which  had  come  to  belong  to  Englishmen  quite 
independently  of  royal  gift  or  favor.  The  Acts  of  Parliament 
upon  which  the  governments  of  such  modern  English  colonies 
as  Canada  and  Australia  rest  do  scarcely  more,  aside  from  their 
outlining  of  forms  of  government,  than  extend  to  the  colonists 
the  immemorial  privileges  of  Englishmen  in  England.  And  so 
our  own  colonial  charters,  besides  providing  for  governors, 
courts,  and  legislatures,  simply  granted  the  usual  rights  of 
English  freeman.  Our  constitutions  have  formulated  our  politi- 
cal progress,  but  the  progress  came  first.  European  constitu- 
tions, on  the  other  hand,  have  for  the  most  part  created  the 
rights  and  immunities,  as  well  as  the  popular  institutions, 
which  they  embody :  they  institute  reform,  instead  of  merely 
confirming  and  crystallizing  it. 

1141.  The  Modern  Federal  State :  Contrasted  with  Con- 
federations. —  In  no  part  of  modern  political  development  have 
written  constitutions  played  a  more  important,  a  more  indis- 
pensable r6le  than  in  the  definite  expression  of  the  nice  balance 
of  institutions  and  functions  upon  which  the  carefully  adjusted 
organism  of  the  modern  federal  state  depends.  The  federal 
state,  as  we  know  it,  is  a  creation  of  modern  politics.  Ancient 
times  afford  many  instances  of  confederated  states,  but  none 
of  a  federal  state.  The  mere  confederations  of  ancient  and  of 
modern  times,  however  long  preserved,  and  of  however  distin- 
guished history,  were  still  not  states  in  the  proper  sense  of  the 
term. 

The  most  prominent  example  of  a  confederation  in  ancient  times 
was  the  celebrated  Achsean  League.  In  modern  times  we  have  had  the 
early  Swiss  confederation,  the  several  German  confederacies,  and  our 
own  short-lived  Confederation. 

They  were  composed  of  states,  and  their  only  constituent 
law  was  treaty :  they  were  themselves,  as  confederacies,  with- 
out sovereign  power:  sovereignty  remained  unimpaired  with 
their  component  states.    Their  members  did  not  unite :  they 


SUMMARY. 


587 


simply  agreed  to  act  in  concert  touching  certain  matters  of 
common  interest. 

1142.  The  modern  federal  state,  on  the  contrary,  is  a  single 
and  complete  political  personality  among  nations :  it  is  not  a 
mere  relationship  existing  between  separate  states,  but  is  itself 
a  State.  To  use  two  expressive  German  terms,  a  confederation 
is  a  Staatenhund  merely,  while  a  federal  state  is  a  Bundesstaat. 
Confederation  and  federal  state  have  this  peculiarity  in  com- 
mon, they  are  both  constituted  by  the  association  of  distinct, 
independent  communities  ;  but  under  a  confederation  these 
communities  practically  remain  distinct  and  independent,  while 
within  a  federal  state  they  are  practically  welded  together  into 
a  single  state,  into  one  nation. 

1143.  Under  both  forms,  however,  it  has  proved  possible  to  make 
provision  for  the  association  upon  the  best  terms  of  mutual  help  and 
support  of  communities  unlike  in  almost  every  feature  of  local  life, 
and  even  of  communities  diverse  in  race,  without  any  surrender  of  their 
individuality  or  of  their  freedom  to  develop  each  its  characteristic  life. 
Nothing  could  well  be  conceived  more  flexible  than  a  system  which  can 
hold  together  German,  French,  and  Italian  elements  as  the  Swiss  con- 
stitution does, 

1144.  Distinguishing  Marks  of  the  Federal  State.  —  The 

federal  state  has,  as  contrasted  with  a  confederation,  these  dis- 
tinguishing features :  (a)  a  permanent  surrender  on  the  part 
of  the  constituent  communities  of  their  right  to  act  indepen- 
dently of  each  other  in  matters  which  touch  the  common  inter- 
est, and  the  consequent  fusion  of  these  communities  into  what 
is  practically  a  single  state.  As  regards  other  states  they  have 
merged  their  individuality  into  one  national  whole :  the  lines 
which  separate  them  are  none  of  them  on  the  outside  but  all 
on  the  inside  of  the  new  organism.  (6)  The  federal  state  pos- 
sesses a  special  body  of  federal  law,  a  special  federal  jurispru- 
dence in  which  is  expressed  the  national  authority  of  the  com- 
pound state.  This  is  not  a  law  agreed  to  by  the  constituent 
communities :  as  regards  the  federal  law  there  are  no  constituent 


588 


SUMMARY. 


communities  :  it  is  the  spoken  will  of  the  new  community,  the 
Union,  (c)  There  results  a  new  conception  of  sovereignty. 
There  exists  in  the  federal  state  no  completely  sovereign  body, 
and  the  functions  of  sovereignty  are  parcelled  out  among 
authorities  national  and  local.  In  certain  spheres  of  state  action 
the  authorities  of  the  Union  are  entitled  to  speak  the  common 
will,  to  utter  laws  which  are  the  supreme  law  of  the  land ;  in 
other  spheres  of  state  action  the  constituent  communities  still 
act  with  the  full  autonomy  of  completely  independent  states. 
The  one  set  of  authorities  is  no  more  sovereign  than  the  other : 
the  attributes  of  sovereignty  are,  so  to  say,  ^  in  commission.' 

1145.  All  modern  federal  states  have  written  constitutions ; 
but  a  written  constitution  is  not,  of  course,  an  essential  char- 
acteristic of  federalism,  it  is  only  a  feature  of  high  convenience ; 
such  delicate  co-ordinate  rights  and  functions  as  are  charac- 
teristic of  federalism  must  be  carefully  defined:  each  set  of 
authorities  must  have  its  definite  commission. 

1146.  It  is  not  certain  that  the  federal  state,  as  thus  described,  is  not 
a  merely  temporary  phenomenon  of  politics.  It  is  plain  from  the 
history  of  modern  federal  states,  —  a  history  as  yet  extremely  brief,  — 
that  the  strong  tendency  of  such  organization  is  towards  the  transmuta- 
tion of  the  federal  into  a  unitary  state.  After  union  is  once  firmly 
established,  not  in  the  interest  only  but  also  in  the  affections  of  the 
people,  the  drift  would  seem  to  be  in  all  cases  towards  consolidation, 

1147.  Existing  Parallels  and  Contrasts  in  Organization.  — 

The  differences  which  emerge  most  prominently  upon  a  com- 
parison of  modern  systems  of  government  are  differences  of 
administrative  organization  chiefly  and  diiferences  in  the  rela- 
tionship borne  by  Executives  to  Legislatures. 

1148.  Administrative  Integration :  Relation  of  Ministers 
to  the  Head  of  the  Executive.  — One  of  the  chief  points  of  in- 
terest and  importance  touching  any  system  of  administration 
is  the  relations  which  the  ministers  of  state  bear  to  the  head 
of  the  Executive.  Of  course  much  of  the  consistency  and 
success  of  policy  depends  upon  the  presence  or  absence  of  a 


SUIVIMAIIY. 


589 


single  guiding  will :  if  ministers  be  without  real  leadership, 
they  are  probably  without  energy  or  success  in  policy,  if  not 
positively  at  odds  with  each  other. 

1149.  Under  our  own  system  the  heads  of  departments  are 
of  course  brought  together  into  at  least  nominal  unity  by  their 
common  subordination  to  the  President.  Although  they  are, 
as  we  have  seen  (sec.  1097),  rather  the  colleagues  than  the  ser- 
vants of  the  President,  his  authority  is  yet  always  in  the  last 
resort  final  and  decisive  :  the  secretaries  have  had  very  few 
powers  conferred  upon  them  by  Congress  in  the  exercise  of 
which  they  are  not  more  or  less  subject  to  presidential  over- 
sight and  control.  The  President  is  in  a  very  real  sense  head 
of  the  Executive.  In  France  and  England,  on  the  contrary, 
the  nominal  head  of  the  Executive  is  not  its  real  head.  Not 
the  President  or  the  sovereign  but  the  Prime  Minister  speaks 
the  decisive  word  in  administration  and  in  the  initiation  of 
policy,  —  and  the  Prime  Minister  only  so  far  as  he  can  carry 
his  colleagues  with  him.  The  headship  of  the  President  and 
the  sovereign  is  in  large  -pnvt  formal  merely,  being  real  only  in 
proportion  to  the  influence  given  them  by  their  interior  position 
as  regards  affairs.  The  influence  of  the  Prime  Minister  is  the 
vital  integrating  force.  Perhaps  it  is  safe  to  say  that  only  in 
Germany,  among  constitutional  states,  have  we  an  example  of 
a  supreme  guiding  will  in  administration.  The  Emperor's  own 
will  or  that  of  the  vice-regent  Chancellor  is  the  real  centre  and 
source  of  all  policy :  the  heads  of  department  are  ministers 
of  that  will.  And  there  is  of  course  under  such  a  system  an 
energy  and  coherence  of  administrative  action  such  as  no  other 
system  can  secure.  The  grave  objection  to  it  is  the  absorption 
of  so  much  vitality  by  the  head  of  the  state  that  its  outlying 
parts,  its  great  constituent  members,  the  people,  are  drained 
of  their  political  life. 

1150.  Relations  of  the  Administration  as  a  Whole  to  the 
Ministers  as  a  Body.  — Scarcely  less  important  from  an  ad- 
ministrative point  of  view  than  the  relations  of  the  ministers 


590 


SUMMARY, 


to  the  head  of  the  Executive  is  the  relation  of  the  administra- 
tion as  a  whole,  both  central  and  local,  to  the  ministers  as  a 
body.  We  have  seen  ( sees.  97 4,  993)  that  in  the  common- 
wealths of  our  own  Union  there  is  in  this  regard  practically 
no  administrative  integration,  that  the  central  officers  of  ad- 
ministration do  not  as  a  rule  constitute  a  controlling  but  only 
a  superior  sort  of  clerical  body.  In  our  federal  organization 
we  have  the  President  as  supreme  chief,  but  the  cabinet  as  a 
body  does  not  usually  exercise  any  concerted  control  over  ad- 
ministration taken  as  a  whole.  Its  counsellings  are  confined 
for  the  mpst  part  to  political  questions :  administrative  ques- 
tions are  decided  separately,  by  each  department  for  itself, 
the  only  real  central  authority  in  administrative  matters  being 
the  President's  opinion,  not  the  counsel  of  his  ministers.  As 
regards  points  of  administrative  policy  each  department  is  a 
law  unto  itself.  In  England  we  find  a  slightly  greater  degree 
of  administrative  control  exercised  by  the  Cabinet  as  a  body. 
A  "  Treasury  minute,"  for  instance,  is  required  for  any  redivis- 
ion  of  business  among  the  departments,  and  such  redivisions 
are  presumably  matters  of  agreement  in  Cabinet  council.  But 
even  in  England  the  administrative  control  of  the  Cabinet  is 
rather  the  result  of  the  political  responsibility  of  the  Cabinet 
than  of  any  conscious  effort  to  integrate  administration  by 
the  constitution  of  a  body  which  shall  habitually  regulate,  by 
semi-judicial  processes,  the  main  features  and  often  even  the 
details  of  executive  management.  In  France  and  Prussia,  on 
the  contrary,  such  an  effort  is  made,  and  is  made  with  effect. 
In  France,  besides  a  Cabinet  of  ministers  whose  function  is 
wholly  political,  there  is  a  Council  of  ministers  whose  single 
office  is  systematic  administrative  oversight,  the  harmonizing 
of  methods,  the  proper  distribution  of  business  among  the  de- 
partments, etc.  (sec.  325)  ;  and  above  this  Council  of  ministers, 
again,  there  is  a  Council  of  State,  a  judicial  body  whose  part  it  is 
to  accommodate  all  disputes  and  adjust  all  conflicts  of  jurisdic- 
tion between  the  departments,  as  well  as  to  act  as  the  supreme 


SUMMARY. 


591 


administrative  tribunal  (sec.  353).  In  Prussia  there  is  a  like 
system  :  a  Staatsministerium  which  to  a  certain  extent  combines 
the  duties  given  in  France  to  the  Council  of  Ministers  and  to 
the  Council  of  State,  and  also  a  Council  of  State  which  is  by- 
degrees  being  elevated  to  high  judicial  functions  (sec.  460). 

1151.  The  Administration  and  the  Legislature.  —  The  re- 
lations borne  by  the  Administration,  the  branch  which  executes 
the  laws,  to  the  Legislature,  the  branch  which  makes  the  laws,  of 
course  touch  the  essence  of  a  system  of  government.  Legisla- 
tion and  administration  ought  under  every  well-devised  system 
to  go  hand  in  hand.  Laws  must  receive  test  of  their  wisdom 
and  feasibility  at  the  hands  of  administration :  administration 
must  take  its  energy  and  its  policy  from  legislation.  Without 
legislation  administration  must  limp,  and  without  administra- 
tion legislation  must  fail  of  effect.  The  vital  connection 
between  the  two  is  well  illustrated  in  the  matter  of  money 
appropriations  for  the  support  of  administration.  Legislators 
hold,  and  properly  hold,  the  purse-strings  of  the  nation :  only 
with  their  consent  can  taxes  be  raised  or  expended.  Without 
the  appropriations  for  which  they  ask,  administrators  cannot 
efficiently  perform  the  tasks  imposed  upon  them  :  but  Avithout 
full  explanation  of  the  necessity  for  granting  the  sums  asked  and 
of  the  modes  in  which  it  is  proposed  to  spend  them  legislators 
cannot  in  good  conscience  vote  them.  A  perfect  understanding 
between  Executive  and  Legislature  is,  therefore,  indispensable, 
and  no  such  understanding  can  exist  in  the  absence  of  rela- 
tions of  full  confidence  and  intimacy  between  the  two  branches. 

1152.  The  absence  of  such  a  co-operative  understanding  has 
led  in  France  to  the  gravest  financial  impotency  on  the  part  of 
the  government.  The  Chambers  trust  almost  nothing  concern- 
ing appropriations  to  the  authoritative  suggestion  of  the  min- 
isters. The  great  Budget  Committee  (sec.  332)  not  only 
examines  and  revises  but  also  at  pleasure  annuls  or  utterly 
reverses  the  financial  proposals  of  the  ministers  :  the  ministers 
are  for  the  most  part  left  entirely  without  power,  and  there- 


\ 


592  SUMMARY. 

fore  entirely  without  responsibility,  in  the  matter,  and  appro- 
priations follow  the  whim  of  the  Chambers  rather  than  the 
necessities  of  administration.  In  England  the  ministers  are 
allowed  to  insist  upon  the  appropriation  of  the  sums  they  ask 
for,  because  they  are  held  strictly  responsible  to  Parliament 
for  the  policy  involved  in  every  financial  proposal :  the  means 
of  raising  the  money  desired  Parliament  is  to  a  certain  extent 
at  liberty  to  suggest  without  implying  distrust  of  the  minis- 
ters;  but  the  amounts  the  ministers  ask  for  must  be  voted 
unless  Parliament  wishes  the  ministers  to  resign.  Confidence 
and  responsibility  go  hand  in  hand  (sees.  686,  689).  Under  our 
own  system  there  is  practically  no  commerce  between  the  heads 
of  departments  and  Congress  :  the  administration  sends  in  esti- 
mates, but  the  Appropriations  Committees  of  the  houses  decide 
without  ministerial  interference  the  amounts  to  be  granted. 

1153.  Of  course  the  relations  existing  between  the  Execu- 
tive and  the  Legislature  equally  affect  every  other  question  of 
policy,  from  mere  administrative  questions,  such  as  the  erec- 
tion of  new  departments,  increases  of  clerical  force,  or  the  re- 
distribution of  departmental  business,  to  the  gravest  questions 
of  commerce,  diplomacy,  and  war.  The  integration  or  sepa- 
ration of  the  Executive  and  the  Legislature  may  be  made  an 
interesting  and  important  criterion  of  the  grade  and  character, 
in  this  day  of  representative  institutions,  of  political  organiza- 
tion in  the  case  of  existing  governments.  Thus  in  England  we 
have  complete  leadership  in  legislation  entrusted  to  the  minis- 
ters, and  to  complete  leadership  is  added  complete  responsibil- 
ity (sees.  686,  689).  In  France  we  have  partial  leadership 
(financial  matters  being  excluded)  with  entire  responsibility 
(sec.  327).  In  Prussia,  leadership  without  responsibility  (sec. 
422)  ;  and  in  Switzerland  the  same  (sec.  533).  Under  our 
own  system  we  have  isolation  j)liis  irresponsibility,  —  isolation 
and  therefore  irresponsibility.  At  this  point  more  widely  than 
at  any  other  our  government  differs  from  the  other  govern- 
ments of  the  world.    Other  Executives  lead ;  ours  obeys. 


XIII. 


NATURE  AND  FOEMS  OF  GOVERNMENT. 

1154.  Government  Rests  upon  Authority  and  Force. — 

The  essential  characteristic  of  all  government,  whatever  its 
form,  is  authority.  There  must  in  every  instance  be,  on  the 
one  hand,  governors,  and,  on  the  other,  those  who  are  governed. 
And  the  authority  of  governors,  directly  or  indirectly,  rests  in 
all  cases  ultimately  on  force.  Government,  in  its  last  analysis, 
is  organized  force.  Not  necessarily  or  invariably  organized 
armed  force,  but  the  will  of  one  man,  of  many  men,  or  of  a 
community  prepared  by  organization  to  realize  its  own  pur- 
poses with  reference  to  the  common  affairs  of  the  community. 
Organized,  that  is,  to  rule,  to  dominate.  The  machinery  of 
government  necessary  to  such  an  organization  consists  of  in- 
strumentalities fitted  to  enforce  in  the  conduct  of  the  common 
aifairs  of  a  community  the  will  of  the  sovereign  man,  the 
sovereign  minority,  or  the  sovereign  majority. 

1155.  Not  necessarily  upon  Obvious  Force. — This  analy- 
sis of  government,  as  consisting  of  authority  resting  on  force, 
is  not,  however,  to  be  interpreted  too  literally,  too  narrowly. 
The  force  behind  authority  must  not  be  looked  for  as  if  it  were 
always  to  be  seen  or  were  always  being  exercised.  That  there 
is  authority  lodged  with  ruler  or  magistrate  is  in  every  case 
evident  enough ;  but  that  that  authority  rests  upon  force  is  not 
always  a  fact  upon  the  surface,  and  is  therefore  in  one  sense 
not  always  practically  significant.  In  the  case  of  any  particular 
government,  the  force  upon  which  the  authority  of  its  officers 


594 


NATURE  AND  FORMS  OF  GOVERNISIENT. 


rests  may  never  once,  for  generations  together,  take  the  shape 
of  armed  force.  Happily  there  are  in  our  own  clay  many 
governments,  and  those  among  the  most  prominent,  which 
seldom  coerce  their  subjects,  seeming  in  their  tranquil  noise- 
less operations  to  run  themselves.  They  in  a  sense  operate 
without  the  exercise  of  force.  But  there  is  force  behind  them 
none  the  less  because  it  never  shows  itself.  The  strongest 
birds  flap  their  wings  the  least.  There  are  just  as  powerful 
engines  in  the  screw-propeller,  for  all  she  glides  so  noiselessly, 
in  the  side-wheeler  that  churns  and  splashes  her  way 
through  the  water.  The  better  governments  of  our  day  — 
those  which  rest,  not  upon  the  armed  strength  of  governors, 
but  upon  the  free  consent  of  the  governed  —  are  without  open 
demonstration  of  force  in  their  operations.  They  are  founded 
upon  constitutions  and  laws  whose  source  and  sanction  are  the 
wdll  of  the  majority.  The  force  which  they  embody  is  not  the 
force  of  a  dominant  dynasty  nor  of  a  prevalent  minority,  but 
the  force  of  an  agreeing  majority.  And  the  overwhelming 
nature  of  this  force  is  evident  in  the  fact  that  the  minority 
very  seldom  challenge  its  exercise.  It  is  latent  just  because 
it  is  understood  to  be  omnipotent.  There  is  force  behind  the 
authority  of  the  elected  magistrate,  no  less  than  behind  that 
of  the  usurping  despot,  a  much  greater  force  behind  the  Presi- 
dent of  the  United  States,  than  behind  the  Czar  of  Eussia. 
The  difference  lies  in  the  display  of  coercive  power.  Physical 
force  is  the  prop  of  both,  though  in  the  one  it  is  the  last,  while 
in  the  other  it  is  the  first  resort. 

1156.  The  Governing  Force  in  Ancient  and  in  Modern 
Society.  —  These  elements  of  authority  and  force  in  govern- 
ment are  thus  quite  plain  to  be  seen  in  modern  society,  even 
when  the  constitution  of  that  society  is  democratic  ;  but  they 
are  not  so  easily  discoverable  upon  a  first  view  in  primitive 
society.  It  is  common  nowadays  when  referring  to  the  affairs 
of  the  most  progressive  nations  to  speak  of  '  government  by 
public  opinion, '  '  government  by  the  popular  voice  ' ;  and  such 


NATURE  AND  FORMS  OF  GOVERNMENT. 


595 


phrases  possibly  describe  sufficiently  well  all  full-grown  demo- 
cratic systems.  But  no  one  intends  such  expressions  to  conceal 
the  fact  that  the  majority,  which  utters  'public  opinion/  does 
not  prevail  because  the  minority  are  convinced,  but  because 
they  are  outnumbered  and  have  against  them  not  the  '  popular 
voice'  only,  but  the  'popular  power'  as  well  —  that  it  is  the 
potential  might  rather  than  the  wisdom  of  the  majority  which 
gives  it  its  right  to  rule.  When  once  majorities  have  learned 
to .  have  opinions  and  to  organize  themselves  for  enforcing 
them,  they  rule  by  virtue  of  power  no  less  than  do  despots 
with  standing  armies  or  concerting  minorities  dominating  un- 
organized majorities.  But,  though  it  was  clearly  opinion 
which  ruled  in  primitive  societies,  this  conception  of  the  might 
of  majorities  hardly  seems  to  fit  our  ideas  of  primitive  systems 
of  government.  What  shall  we  say  of  them  in  connection 
with  our  present  analysis  of  government  ?  They  were  neither 
democracies  in  which  the  will  of  majorities  chose  the  ways  of 
government,  nor  despotisms,  in  which  the  will  of  an  individual 
controlled,  nor  oligarchies,  in  which  the  purposes  of  a  minority 
prevailed.  Where  shall  we  place  the  force  which  lay  behind 
the  authority  exercised  under  them  ?  Was  the  power  of  the 
father  in  the  patriarchal  family  power  of  arm,  mere  domineer- 
ing strength  of  will  ?  What  was  the  force  that  sustained  the 
authority  of  the  tribal  chieftain  or  of  that  chief  of  chiefs,  the 
king  ?  That  authority  was  not  independent  of  the  consent  of 
those  over  whom  it  was  exercised ;  and  yet  it  was  not  formu- 
lated by  that  consent.  That  consent  may  be  said  to  have  been 
involuntary,  inhred.  It  was  born  of  the  habit  of  the  race.  It 
v/as  congenital.  It  consisted  of  a  custom  and  tradition,  more- 
over, which  bound  the  chief  no  less  than  it  bound  his  subjects. 
He  might  no  more  transgress  the  unwritten  law  of  the  race 
than  might  the  humblest  of  his  fellow-tribesmen.  He  was 
governed  scarcely  less  than  they  were.  All  were  under  bondage 
to  strictly  prescribed  ways  of  life.  Where  then  lay  the  force 
which  sanctioned  the  authority  of  chief  and  sub-chief  and 


596  NATURE  AND  FORMS  OF  GOVERNMENT. 

father  in  this  society  ?  Not  in  the  will  of  the  ruler  :  that  was 
bound  by  the  prescriptions  of  custom.  Not  in  the  popular 
choice  :  over  that  too  the  law  of  custom  reigned. 

1157.  The  Force  of  the  Common  Will  in  Ancient  Society. 
—  The  real  residence  of  force  in  such  societies  as  these  can  be 
most  easily  discovered  if  we  look  at  them  under  other  circum- 
stances. Nations  still  under  the  dominion  of  customary  law 
have  within  historical  times  been  conquered  by  alien  conquer- 
ors ;  but  in  no  such  case  did  the  will  of  the  conqueror  have 
free  scope  in  regulating  the  affairs  of  the  conquered.  Seldom 
did  it  have  any  scope  at  all.  The  alien  throne  was  maintained 
by  force  of  arms,  and  taxes  were  mercilessly  wrung  from  the 
subject  populations;  but  never  did  the  despot  venture  to 
change  the  customs  of  the  conquered  land.  Its  native  laws 
he  no  more  dared  to  touch  than  would  a  prince  of  the  dynasty 
which  he  had  displaced.  He  dared  not  play  with  the  forces 
latent  in  the  prejudices,  the  fanaticism  of  his  subjects.  He 
knew  that  those  forces  were  volcanic,  and  that  no  prop  of 
armed  men  could  save  his  throne  from  overthrow  and  destruc- 
tion should  they  once  break  forth.  He  really  had  no  author- 
ity to  govern,  but  only  a  power  to  despoil, —  for  the  idea  of 
government  is  inseparable  from  the  conception  of  legal  regu- 
lation. If,  therefore,  in  the  light  of  such  cases,  we  conceive 
the  throne  of  such  a  society  as  occupied  by  some  native  prince 
whose  authority  rested  upon  the  laws  of  his  country,  it  is 
plain  to  see  that  the  real  force  upon  which  authority  rests  under 
a  government  so  constituted  is  after  all  the  force  of  public  opin- 
ion, in  a  sense  hardly  less  vividly  real  than  if  we  spoke  of  a  mod- 
ern democracy.  The  law  inheres  in  the  common  will :  and  it  is 
that  law  upon  which  the  authority  of  the  prince  is  founded. 
He  rules  according  to  the  common  will :  for  that  will  is,  that 
immemorial  custom  be  inviolably  observed.  The  force  latent 
in  that  common  will  both  backs  and  limits  his  authority. 

1158.  Public  Opinion,  Ancient  and  Modern.  —  The  fact 
that  the  public  opinion  of  such  societies  made  no  choice  of 


NATURE  AND  FOKMS  OF  GOVERNMENT. 


597 


laws  or  constitutions  need  not  confuse  for  us  the  analogy 
between  that  public  opinion  and  our  own.  Our  own  approval 
of  the  government  under  which  we  live,  though  doubtless 
conscious  and  in  a  way  voluntary,  is  largely  hereditary  —  is 
largely  an  inbred  and  inculcated  approbation.  There  is  a 
large  amount  of  mere  drift  in  it.  Conformity  to  what  is  estab- 
lished is  much  the  easiest  habit  in  opinion.  Our  constructive 
choice  even  in  our  own  governments,  under  which  there  is  no 
divine  canon  against  change,  is  limited  to  modifications.  The 
generation  that  saw  our  federal  system  established  may  have 
imagined  themselves  out-of-hand  creators,  originators,  of  gov- 
ernment ;  but  we  of  this  generation  have  taken  what  was  given 
us,  and  are  not  controlled  by  laws  altogether  of  our  own  making. 
Our  constitutional  life  was  made  for  us  long  ago.  We  are  like 
primitive  men  in  the  public  opinion  which  preserves,  though 
unlike  them  in  the  public  opinion  which  alters  our  institutions. 
Their  stationary  common  thought  contained  the  generic  forces 
of  government  no  less  than  does  our  own  progressive  public 
thought. 

1159.  The  True  Nature  of  Government.  —  What,  then,  in 
the  last  analysis,  is  the  nature  of  government  ?  If  it  rests  upon 
authority  and  force,  but  upon  authority  which  depends  upon 
the  acquiescence  of  the  general  will  and  upon  force  suppressed, 
latent,  withheld  except  under  extraordinary  circumstances, 
what  principle  lies  behind  these  phenomena,  at  the  heart  of 
government  ?  The  answer  is  hidden  in  the  nature  of  Society 
itself.  Society  is  in  no  sense  artificial ;  it  is  as  truly  natural 
and  organic  as  the  individual  man  himself.  As  Aristotle  said, 
man  is  by  nature  a  social  animal ;  his  social  function  is  as 
normal  with  him  as  is  his  individual  function.  Since  the 
family  was  formed,  he  has  not  been  without  politics,  without 
political  association.  Society,  therefore,  is  compounded  of 
the  common  habit,  an  evolution  of  experience,  an  interlaced 
growth  of  tenacious  relationships,  a  compact,  living,  organic 
whole,  structural,  not  mechanical. 


598  NATURE  AND  FORMS  OF  GOVERNMENT. 

1160.  Society  an  Organism,  Government  an  Organ.  —  Gov- 
ernment is  merely  the  executive  organ  of  society,  the  organ 
through  which  its  habit  acts,  through  which  its  will  becomes 
operative,  through  which  it  adapts  itself  to  its  environment 
and  works  out  for  itself  a  more  effective  life.  There  is  clear 
reason,  therefore,  why  the  disciplinary  action  of  society  upon 
the  individual  is  exceptional ;  clear  reason  also  why  the  power 
of  the  despot  must  recognize  certain  ultimate  limits  and 
bounds  ;  and  clear  reason  why  sudden  or  violent  changes  of 
government  lead  to  equally  violent  and  often  fatal  reaction  and 
revolution.  It  is  only  the  exceptional  individual  who  is  not 
held  fast  in  his  obedience  to  the  common  habit  of  social  duty 
and  comity.  The  despot's  power,  like  the  potter's,  is  limited 
by  the  characteristics  of  the  materials  in  which  he  works,  of 
the  society  which  he  manipulates ;  and  change  which  roughly 
breaks  with  the  common  thought  will  lack  the  sympathy  of 
that  thought,  will  provoke  its  opposition,  and  will  inevitably 
be  crushed  by  that  opposition.  Society,  like  other  organisms, 
can  be  changed  only  by  evolution,  and  revolution  is  the  antip- 
ode  of  evolution.  The  public  order  is  preserved  because  order 
inheres  in  the  character  of  society. 

1161.  The  Forms  of  Government :  Their  Significance.  — 
The  forms  of  government  do  not  affect  the  essence  of  govern- 
ment :  the  bayonets  of  the  tyrant,  the  quick  concert  and  supe- 
rior force  of  an  organized  minority,  the  latent  force  of  a  self- 
governed  majority,  —  all  these  depend  upon  the  organic  char- 
acter and  development  of  the  community.  "  The  obedience  of 
the  subject  to  the  sovereign  has  its  root  not  in  contract  but  in 
force,  —  the  force  of  the  sovereign  to  punish  disobedience  ; "  ^ 
but  that  force  must  be  backed  by  the  general  habit  (sees.  1200- 
1206).  The  forms  of  government  are,  however,  in  every  way 
most  important  to  be  observed,  for  the  very  reason  that  they 
express  the  character  of  government,  and  indicate  its  history. 


1  John  Morley,  Rousseau,  Vol.  II.,  p.  184. 


NATURE  AND  FORMS  OF  GOVERNMENT.  599 


They  exhibit  the  stages  of  political  development,  and  make 
clear  the  necessary  constituents  and  ordinary  purposes  of  gov- 
ernment, historically  considered.  They  illustrate,  too,  the 
sanctions  upon  which  it  rests. 

1162.  Aristotle's  Analysis  of  the  Forms  of  Government.  — 
It  has  been  common  for  writers  on  politics  in  speaking  of  the 
several  forms  of  government  to  rewrite  Aristotle,  and  it  is  not 
easy  to  depart  from  the  practice.  For,  although  Aristotle's 
enumeration  was  not  quite  exhaustive,  and  although  his  de- 
scriptions will  not  quite  fit  modern  types  of  government,  his 
enumeration  still  serves  as  a  most  excellent  frame  on  which 
to  hang  an  exposition  of  the  forms  of  government,  and  his 
descriptions  at  least  furnish  points  of  contrast  between  ancient 
and  modern  governments  by  observing  which  we  can  the  more 
clearly  understand  the  latter. 

1163.  Aristotle  considered  Monarchy,  Aristocracy,  and  De- 
mocracy (Ochlocracy)  the  three  standard  forms  of  govermnent. 
The  first  he  defined  as  the  rule  of  One,  the  second  as  the  rule  of 
the  Few,  the  third  as  the  rule  of  the  Many.^  Off  against  these 
standard  and,  so  to  say,  healthful  forms  he  set  their  degenerate 
shapes.  Tyranny  he  conceived  to  be  the  degenerate  shape  of 
Monarchy,  Oligarchy  the  degenerate  shax3e  of  Aristocracy,  and 
Anarchy  (or  mob-rule)  the  degenerate  shape  of  Democracy. 
His  observation  of  the  political  world  about  him  led  him  to 
believe  that  there  was  in  every  case  a  strong,  an  inevitable 
tendency  for  the  pure  forms  to  sink  into  the  degenerate. 

1164.  The  Cycle  of  Degeneracy  and  Revolution.  —  He  out- 
lined a  cycle  of  degeneracies  and  revolutions  through  which, 
as  he  conceived,  every  State  of  long  life  was  apt  to  pass.  His 
idea  was  this.  The  natural  first  form  of  government  for  every 
state  would  be  the  rule  of  a  monarch,  of  the  single  strong  man 
with  sovereign  power  given  him  because  of  his  strength.  This 
monarch  would  usually  hand  on  his  kingdom  to  his  children. 

1  Not  of  the  absolute  majority,  as  we  shall  see  presently  when  contrast- 
ing ancient  and  modern  democracy  (sees.  1170,  1173). 


600 


NATURE  AND  FORMS  OF  GOVERNMENT. 


They  might  confidently  be  expected  to  forget  those  pledges 
and  those  views  of  the  public  good  which  had  bound  and 
guided  him.  Their  sovereignty  would  sink  into  tyranny.  At 
length  their  tyranny  would  meet  its  decisive  check  at  some 
Runny mede.  There  would  be  revolt ;  and  the  princely  lead- 
ers of  revolt,  taking  government  into  their  own  hands,  would 
set  up  an  Aristocracy.  But  aristocracies,  though  often  public- 
spirited  and  just  in  their  youth,  always  decline,  in  their  later 
years,  into  a  dotage  of  selfish  oligarchy.  Oligarchy  is  even 
more  hateful  to  civil  liberty,  is  even  a  graver  hindrance  to 
healthful  civil  life  than  tyranny.  A  class  bent  upon  subserv- 
ing only  their  own  interests  can  devise  injustice  in  greater 
variety  than  can  a  single  despot :  and  their  insolence  is  always 
quick  to  goad  the  many  to  hot  revolution.  To  this  revolution 
succeeds  Democracy.  But  Democracy  too  has  its  old  age  of 
degeneracy  —  an  old  age  in  w^hich  it  loses  its  early  respect  for 
law,  its  first  amiability  of  mutual  concession.  It  breaks  out 
into  license  and  Anarchy,  and  none  but  a  Caesar  can  bring  it 
back  to  reason  and  order.  The  cycle  is  completed.  The 
throne  is  set  up  again,  and  a  new  series  of  deteriorations  and 
revolutions  begins. 

1165.  Modern  Contrasts  to  the  Aristotelian  Forms  of  Gov- 
ernment. —  The  confirmations  of  this  view  furnished  by  the 
history  of  Europe  since  the  time  of  Aristotle  have  been  striking 
and  numerous  enough  to  render  it  still  oftentimes  convenient 
as  a  scheme  by  which  to  observe  the  course  of  political  history 
even  in  our  own  days.  But  it  is  still  more  instructive  to  con- 
trast the  later  facts  of  political  development  with  this  ancient 
exposition  of  the  laws  of  politics.  Observe,  then,  the  differ- 
ences between  modern  and  ancient  types  of  government,  and  the 
likelihood  that  the  historian  of  the  future,  if  not  of  the  present 
and  the  immediate  past,  will  have  to  record  more  divergencies 
from  the  cycle  of  Aristotle  than  correspondences  with  it. 

1166.  The  Modern  Absolute  Monarchy.  —  Taking  the  Rus- 
sian government  of  to-day  as  a  type  of  the  vast  absolute  Hon- 


NATURE  AND  FORMS  OF  GOVERNMENT. 


601 


archies  which  have  grown  up  in  Europe  since  the  death  of 
Aristotle,  it  is  evident  that  the  modern  monarch,  if  he  be  in- 
deed monarch,  has  a  much  deeper  and  wider  reach  of  power 
than  had  the  ancient  monarch.  The  monarch  of  our  day  is  a 
Legislator;  the  ancient  monarch  was  not.  Ancient  society 
may  be  said  hardly  to  have  known  what  legislation  was.  Cus- 
tom was  for  it  the  law  of  public  as  well  as  of  private  life  :  and 
custom  could  not  be  enacted.  At  any  rate  ancient  monarchies 
were  not  legislative.  The  despot  issued  edicts  —  imperative 
commands  covering  particular  cases  or  affecting  particular 
individuals :  the  Roman  emperors  were  among  the  first  to 
promulgate  '  constitutions,'  —  general  rules  of  law  to  be  ap- 
plied universally.  The  modern  despot  can  do  more  even  than 
that.  He  can  regulate  by  his  command  public  affairs  not  only 
but  private  as  well  —  can  even  upset  local  custom  and  bring 
all  his  subjects  under  uniform  legislative  control.  Nor  is  he 
in  the  least  bound  to  observe  his  own  laws.  A  word  —  and 
that  his  own  word  —  will  set  them  aside :  a  word  will  abolish, 
a  word  restore,  them.  He  is  absolute  over  his  subjects  not 
only  —  ancient  despots  were  that  —  but  over  all  laws  also  — 
which  no  ancient  despot  was. 

1167.  Of  course  these  statements  are  meant  to  be  taken  with  certain 
important  limitations.  The  modern  despot  as  well  as  the  ancient  is  bound 
by  the  habit  of  his  people.  He  may  change  laws,  but  he  may  not  change 
life  as  easily ;  and  the  national  traditions  and  national  character,  the 
rural  and  commercial  habit  of  his  kingdom,  bind  him  very  absolutely. 
The  limitation  is  not  often  felt  by  the  monarch,  simply  because  he  has 
himself  been  bred  in  the  atmosphere  of  the  national  life  and  uncon- 
sciously conforms  to  it  (sees.  1200-1206). 

1168.  The  Modern  Monarchy  usually  *  Limited.*  —  But  the 

present  government  of  Eussia  is  abnormal  in  the  Europe  of 
to-day,  as  abnormal  as  that  of  the  Turk  —  a  belated  example 
of  those  crude  forms  of  politics  which  the  rest  of  Europe  has 
outgrown.  Turning  to  the  other  monarchies  of  to-day,  it  is  at 
once  plain  that  they  present  the  strongest  contrast  possible  to 


602 


NATURE  AND  FORMS  OF  GOVERN]VIENT. 


any  absolute  monarchy  ancient  or  modern.  Almost  without 
exception  in  Europe,  they  are  '  limited '  by  the  resolutions  of 
a  popular  parliament.  The  people  have  a  distinct  and  often 
an  imperative  voice  in  the  conduct  of  public  affairs. 

1169.  Is  Monarchy  now  succeeded  by  Aristocracy?  —  And 
what  is  to  be  said  of  Aristotle's  cycle  in  connection  with 
modern  monarchies  ?  Does  any  one  suppose  it  possible  that 
when  the  despotism  of  the  Czar  falls  it  will  be  succeeded  by 
an  aristocracy  ;  or  that  when  the  modified  authority  of  the 
emperors  of  Austria  and  G-ermany  or  the  king  of  Italy  still 
further  exchanges  substance  for  shadow,  a  limited  class  will 
succeed  to  the  reality  of  power  ?  Is  there  any  longer  any  place 
between  Monarchy  and  Democracy  for  Aristocracy?  Has  it 
not  been  crowded  out  ? 

1170.  English  and  Ancient  Aristocracy  contrasted.  —  In- 
deed, since  the  extension  of  the  franchise  in  England  to  the 
working  classes,  no  example  of  a  real  Aristocracy  is  left  in  the 
modern  world.  At  the  beginning  of  this  century  the  govern- 
ment of  England,  called  a  limited  monarchy,'  was  in  reality 
an  Aristocracy.  Parliament  and  the  entire  administration  of 
the  kingdom  were  in  the  hands  of  the  classes  having  wealth 
or  nobility.  The  members  of  the  House  of  Lords  and  the 
crown  together  controlled  a  majority  of  the  seats  in  the  House 
of  Commons.  England  was  '  represented '  by  her  upper  classes 
almost  exclusively.  That  Aristocracy  has  been  set  aside  by 
the  Reform  Bills  of  1832,  1867,  and  1885;  but  it  is  worth 
while  looking  back  to  it,  in  order  to  contrast  a  modern  type  of 
Aristocracy  with  those  ancient  aristocracies  which  were  pres- 
ent to  the  mind  of  Aristotle.  An  ancient  Aristocracy  consti- 
tuted the  state ;  the  English  aristocracy  merely  controlled  the 
state.  Under  the  widest  citizenship  known  even  to  ancient 
democracy  less  than  half  the  adult  male  subjects  of  the  state 
shared  the  franchise.  The  ancient  Democracy  itself  was  a 
government  by  a  minority.  The  ancient  Aristocracy  was  a 
government  by  a  still  narrower  minority  5  and  this  narrow 


NATURE  AND  FORMS  OF  GOVERNMENT.  603 

minority  monopolized  office  and  power  not  only,  but  citizenship 
as  well.  There  were  no  citizens  but  they.  They  were  the 
State.  Every  one  else  existed  for  the  state,  only  they  were 
part  of  it.  In  England  the  case  was  very  different.  There 
the  franchise  was  not  confined  to  the  aristocrats ;  it  was  only 
controlled  by  them.  Nor  did  the  aristocrats  of  England  con- 
sider themselves  the  whole  of  the  State.  They  were  quite 
conscious  —  and  quite  content  —  that  they  had  the  State  vir- 
tually in  their  possession ;  but  they  looked  upon  themselves 
as  holding  it  in  trust  for  the  people  of  Great  Britain.  Their 
legislation  was,  in  fact,  class  legislation,  after  a  very  narrow 
sort;  but  they  did  not  think  that  it  was.  They  regarded 
their  rule  as  eminently  advantageous  to  the  kingdom;  and 
they  unquestionably  had,  or  tried  to  have,  the  real  interests 
of  the  kingdom  at  heart.  They  led  the  state,  but  did  not 
constitute  it. 

1171.  Present  and  Future  Prevalence  of  Democracy.  —  If 

Aristocracy  seems  about  to  disappear.  Democracy  seems  about 
universally  to  prevail.  Ever  since  the  rise  of  popular  educa- 
tion in  the  last  century  and  its  vast  development  since  have 
assured  a  thinking  weight  to  the  masses  of  the  people  every- 
where, the  advance  of  democratic  opinion  and  the  spread  of 
democratic  institutions  have  been  most  marked  and  most  sig- 
nificant. They  have  destroyed  almost  all  pure  forms  of  Mon- 
archy and  Aristocracy  by  introducing  into  them  imperative 
forces  of  popular  thought  and  the  concrete  institutions  of 
popular  representation ;  and  they  promise  to  reduce  politics  to 
a  single  pure  form  by  excluding  all  other  governing  forces  and 
institutions  but  those  of  a  wide  suffrage  and  a  democratic  rep- 
resentation, —  by  reducing  all  forms  of  government  to  Democ- 
racy. 

1172.  Differences  of  Form  between  Ancient  and  Modern 
Democracies.  — The  differences  of  form  to  be  observed  between 
ancient  and  modern  Democracies  are  wide  and  important. 
Ancient  Democracies  were  '  immediate ' ;  ours  are  '  mediate,' 


604  NATURE  AND  FORMS  OF  GOVERNMENT. 

that  is  to  say,  representative.  Every  citizen  of  the  Athenian 
State  —  to  take  that  as  a  type  —  had  a  right  to  appear  and 
vote  in  proper  person  in  the  popular  assembly,  and  in  those 
committees  of  that  assembly  which  acted  as  criminal  courts ;  the 
modern  voter  votes  for  a  representative  who  is  to  sit  for  him  in 
the  popular  chamber  —  he  himself  has  not  even  the  right  of 
entrance  there.  This  idea  of  representation  —  even  the  idea  of 
a  vote  by  proxy  —  was  hardly  known  to  the  ancients ;  among  us 
it  is  all-pervading.  Even  the  elected  magistrate  of  an  ancient 
Democracy  was  not  looked  upon  as  a  representative  of  his  fellow- 
citizens.  He  was  the  State,  so  far  as  his  functions  went,  and  so 
long  as  his  term  of  office  lasted.  He  could  break  through  all  law 
or  custom,  if  he  dared.  It  was  only  when  his  term  had  expired 
and  he  was  again  a  private  citizen  that  he  could  be  called  to 
account.  There  was  no  impeachment  while  in  office.  To  our 
thought  all  elected  to  office  —  whether  Presidents,  ministers, 
or  legislators  —  are  representatives.  The  limitations  as  to  the 
size  of  the  state  involved  in  the  absence  from  ancient  concep- 
tion of  the  principle  of  representation  is  obvious.  A  State  in 
which  all  citizens  were  also  legislators  must  of  necessity  be 
small.  The  modern  representative  state  has  no  such  limitar 
tion.    It  may  cover  a  continent. 

1173.  Nature  of  Democracy,  Ancient  and  Modern.  —  The 
differences  of  nature  to  be  observed  between  ancient  and  mod- 
ern Democracies  are  no  less  wide  and  important.  The  ancient 
Democracy  was  a  class  government.  As  already  pointed  out, 
it  was  only  a  broader  Aristocracy.  Its  franchise  was  at 
widest  an  exclusive  privilege,  extending  only  to  a  minority. 
There  were  slaves  under  its  heel ;  there  were  even  freedmen 
who  could  never  hope  to  enter  its  citizenship.  Class  subordina- 
tion was  of  the  essence  of  its  constitution.  From  the  modern 
Democratic  State,  on  the  other  hand,  both  slavery  and  class 
subordination  are  excluded  as  inconsistent  with  its  theory,  not 
only,  but,  more  than  that,  as  antagonistic  to  its  very  being. 
Its  citizenship  is  as  wide  as  its  native  population  ;  its  suffrage 


NATURE  AND  FOKMS  OF  GOVERNMENT.  605 

as  wide  as  its  qualified  citizenship,  —  it  knows  no  non-citizen 
class.  And  there  is  still  another  difference  between  the  Democ- 
nicy  of  Aristotle  and  the  Democracy  of  de  Tocqueville  and 
Benthani.  The  citizens  of  the  former  lived  for  the  State ;  the 
citizen  of  the  latter  lives  for  himself,  and  the  State  is  for  him. 
The  modern  Democratic  State  exists  for  the  sake  of  the  indi- 
vidual ;  the  individual,  in  Greek  conception,  lived  for  the  State. 
The  ancient  State  recognized  no  personal  rights  —  all  rights 
were  State  rights ;  the  modern  State  recognizes  no  State  rights 
which  are  independent  of  personal  rights. 

1174.  Growth  of  the  Democratic  Idea.  — In  making  the  last 
statement  embrace  '  the  ancient  State  '  irrespective  of  kind  and 
*the  modern  State,'  of  whatever  form,  I  have  pointed  out  what 
I  conceive  to  be  the  cardinal  difference  between  all  the  ancient 
forms  of  government  and  all  the  modern.  It  is  a  difference 
which  I  have  already  stated  in  another  way.  The  democratic 
idea  has  penetrated  more  or  less  deeply  all  the  advanced 
systems  of  government,  and  has  penetrated  them  in  conse- 
quence of  that  change  of  thought  which  has  given  to  the 
individual  an  importance  quite  independent  of  his  member- 
ship of  a  State.  I  can  here  only  indicate  the  historical  steps 
of  that  change  of  thought ;  I  cannot  go  at  any  length  into  its 
causes. 

1175.  Subordination  of  the  Individual  in  the  Ancient  State. 

—  We  have  seen  that,  in  the  history  of  political  society,  if 
we  have  read  that  history  aright,  the  rights  of  government  — 
the  magistracies  and  subordinations  of  kinship  —  antedate 
what  we  now  call  the  rights  of  the  individual.  A  man  was  at 
first  nobody  in  himself ;  he  was  only  the  kinsman  of  somebody 
else.  The  father  himself,  or  the  chief,  commanded  only 
because  of  priority  in  kinship :  to  that  all  rights  of  all  men 
were  relative.  Society  was  the  unit ;  the  individual  the  frac- 
tion. Man  existed  for  society.  He  was  all  his  life  long  in 
tutelage ;  only  society  was  old  enough  to  take  charge  of  itself. 
The  state  was  the  only  Individual. 


606 


NATURE  AND  FORMS  OF  GOVERNMENT. 


1176.  Individualism  of  Christianity  and  Teutonic  Institu- 
tions. —  There  was  no  essential  change  in  this  idea  for  centu- 
ries. Through  all  the  developments  of  government  down  to 
the  time  of  the  rise  of  the  Eoman  Empire  the  State  continued, 
in  the  conception  of  the  western  nations  at  least,  to  eclipse  the 
individual.  Private  rights  had  no  standing  as  against  the 
State.  Subsequently  many  influences  combined  to  break  in 
upon  this  immemorial  conception.  Chief  among  these  influ- 
ences were  Christianity  and  the  institutions  of  the  German 
conquerors  of  the  fifth  century.  Christianity  gave  each  man 
a  magistracy  over  himself  by  insisting  upon  his  personal,  indi- 
vidual responsibility  to  God.  For  right  living,  at  any  rate, 
each  man  was  to  have  only  his  own  conscience  as  a  guide.  In 
these  deepest  matters  there  must  be  for  the  Christian  an  indi- 
viduality which  no  claim  of  his  State  upon  him  could  right- 
fully be  suffered  to  infringe.  The  German  nations  brought 
into  the  Eomanized  and  partially  Christianized  world  of  the 
fifth  century  an  individuality  of  another  sort,  —  the  idea  of 
allegiance  to  individuals  (sec.  228).  Perhaps  their  idea  that 
each  man  had  a  money-value  which  must  be  paid  by  any  one 
who  might  slay  him  also  contributed  to  the  process  of  making 
men  units  instead  of  state-fractions  ;  but  their  idea  of  personal 
allegiance  played  the  more  2:)rominent  part  in  the  transforma- 
tion of  society  which  resulted  from  their  western  conquests. 
The  E-oman  knew  no  allegiance  save  allegiance  to  his  State. 
He  swore  fealty  to  his  imperator  as  to  a  representative  of  that 
State,  not  as  to  an  individual.  The  Teuton,  on  the  other  hand, 
bound  himself  to  his  leader  by  a  bond  of  personal  service  which 
the  Roman  either  could  not  understand  or  understood  only  to 
despise.  There  were,  therefore,  individuals  in  the  German 
State :  great  chiefs  or  warriors  with  a  following  (comitatus)  of 
devoted  volunteers  ready  to  die  for  them  in  frays  not  directed 
by  the  state,  but  of  their  own  provoking  (sees.  226-228). 
There  was  with  all  German  tribes  freedom  of  individual  move- 
ment and  combination  within  the  ranks,  —  a  wide  play  of  indi- 


NATURE  AND  FORMS  OF  GOVERNMENT. 


607 


vidual  initiative.  When  the  German  settled  down  as  master 
amongst  the  Romanized  populations  of  western  and  southern 
Europe,  his  thought  was  led  captive  by  the  conceptions  of  the 
Roman  law,  as  all  subsequent  thought  that  has  known  it  has 
been,  and  his  habits  were  much  modified  by  those  of  his  new 
subjects;  but  this  strong  element  of  individualism  was  not 
destroyed  by  the  contact.  It  lived  to  constitute  one  of  the 
chief  features  of  the  Feudal  System. 

1177.  The  Transitional  Feudal  System.  —  The  Feudal 
System  was  made  up  of  elaborate  gradations  of  personal  alle- 
giance. The  only  State  possible  under  that  system  was  a 
disintegrate  state  embracing  not  a  unified  people,  but  a  nation 
atomized  into  its  individual  elements.  A  king  there  might  be, 
but  he  was  lord,  not  of  his  people,  but  of  his  barons.  He  was 
himself  baron  also,  and  as  such  had  many  a  direct  subject  pledged 
to  serve  him ;  but  as  king  the  barons  were  his  only  direct  sub- 
jects ;  and  the  barons  were  heedful  of  their  allegiance  to  him 
only  when  he  could  make  it  to  their  interest  to  be  so,  or  their 
peril  not  to  be.  They  were  the  kings  of  the  people,  who  owed 
direct  allegiance  to  them  alone,  and  to  the  king  only  through 
them.  Kingdoms  were  only  greater  baronies,  baronies  lesser 
kingdoms.  One  small  part  of  the  people  served  one  baron, 
another  part  served  another  baron.  As  a  whole  they  served 
no  one  master.  They  were  not  a  whole  :  they  were  jarring, 
disconnected  segments  of  a  nation.  Every  man  had  his  own 
lord,  and  antagonized  every  one  who  had  not  the  same  lord  as 
he  (sees.  238-243). 

1178.  Rise  of  the  Modern  State.  —  Such  a  system  was,  of 
course,  fatal  to  peace  and  good  government,  but  it  cleared  the 
way  for  the  rise  of  the  modern  State  by  utterly  destroying  the 
old  conception  of  the  State.  The  State  of  the  ancients  had 
been  an  entity  in  itself  —  an  entity  to  which  the  entity  of  the 
individual  was  altogether  subordinate.  The  Feudal  State  was 
merely  an  aggregation  of  individuals,  —  a  loose  bundle  of  sepa- 
rated series  of  men  knowing  no  common  aim  or  action.    It  not 


608 


NATURE  AND  FOKMS  OF  GOVERNMENT. 


only  had  no  actual  unity  :  it  had  no  thought  of  unity.  National 
unity  came  at  last,  —  in  France,  for  instance,  by  the  subjuga- 
tion of  the  barons  by  the  king  (sec.  253)  ;  in  England  by  the 
joint  effort  of  people  and  barons  against  the  throne, but 
when  it  came  it  was  the  ancient  unity  with  a  difference.  Men 
were  no  longer  State  fractions ;  they  had  become  State  inte- 
gers. The  State  seemed  less  like  a  natural  organism  and  more 
like  a  deliberately  organized  association.  Personal  allegiance 
to  kings  had  everywhere  taken  the  place  of  native  membership 
of  a  body  politic.    Men  were  now  subjects,  not  citizens. 

1179.  Renaissance  and  Reformation.  —  Presently  came  the 
thirteenth  century  with  its  wonders  of  personal  adventure  and 
individual  enterprise  in  discovery,  piracy,  and  trade.  Follow- 
ing hard  upon  these,  the  Penaissance  woke  men  to  a  philo- 
sophical study  of  their  surroundings  —  and  above  all  of  their 
long-time  unquestioned  systems  of  thought.  Then  arose 
Luther  to  reiterate  the  almost  forgotten  truths  of  the  indi- 
viduality of  men's  consciences,  the  right  of  individual  judg- 
ment. Ere  long  the  new  thoughts  had  penetrated  to  the 
masses  of  the  people.  Peformers  had  begun  to  cast  aside 
their  scholastic  weapons  and  come  down  to  the  common  folk 
about  them,  talking  their  own  vulgar  tongue  and  craving  their 
acquiescence  in  the  new  doctrines  of  deliverance  from  mental 
and  spiritual  bondage  to  Pope  or  Schoolman.  National  litera^ 
tures  were  born.  Thought  had  broken  away  from  its  exclu- 
sion in  cloisters  and  universities  and  had  gone  out  to  challenge 
the  people  to  a  use  of  their  own  minds.  By  using  their  minds, 
the  people  gradually  put  away  the  childish  things  of  their  days 
of  ignorance,  and  began  to  claim  a  part  in  affairs.  Finally, 
systematized  jjopular  education  has  completed  the  story.  Nar 
tions  are  growing  up  into  manhood.  Peoples  are  becoming  old 
enough  to  govern  themselves. 

1180.  The  Modern  Force  of  Majorities.  —  It  is  thus  no  ac- 
cident, but  the  outcome  of  great  permanent  causes,  that  there 
is  no  more  to  be  found  among  the  civilized  races  of  Europe 


NATURE  AND  FORMS  OF  GOVERNMENT.  609 

any  satisfactory  example  of  Aristotle's  Monarchies  and  Aris- 
tocracies. The  force  of  modern  governments  is  not  now  often 
the  force  of  minorities.  It  is  getting  to  be  more  and  more  the 
force  of  majorities.  The  sanction  of  every  rule  not  founded 
upon  sheer  military  despotism  is  the  consent  of  a  thinking 
people.  Military  despotisms  are  now  seen  to  be  necessarily 
ephemeral.  Only  monarchs  who  are  revered  as  seeking  to 
serve  their  subjects  are  any  longer  safe  upon  their  thrones. 
Monarchies  exist  only  by  democratic  consent. 

1181.  New  Character  of  Society. — And,  more  than  that, 
the  result  has  been  to  give  to  society  a  new  integration.  The 
common  habit  is  now  operative  again,  not  in  acquiescence  and 
submission  merely,  but  in  initiative  and  progress  as  well.  So- 
ciety is  not  the  organism  it  once  was,  —  its  members  are  given 
freer  play,  fuller  opportunity  for  origination ;  but  its  organic 
character  is  again  prominent.  It  is  the  Whole  which  has 
emerged  from  the  disintegration  of  feudalism  and  the  speciali- 
zation of  absolute  monarchy.  The  Whole,  too,  has  become 
self-conscious,  and  by  becoming  self -directive  has  set  out  upon 
a  new  course  of  development. 


XIV. 


LAW:  ITS  NATUEE  AND  DEVELOPIVIENT. 

1182.  What  Is  Law  ?  —  In  the  nature  and  development  of 
Law  three  things  stand  revealed;  namely,  the  nature,  the 
functions,  and  the  history  of  government.  Law  is  the  will  of 
the  State  concerning  the  civic  conduct  of  those  under  its  au- 
thority. This  will  may  be  more  or  less  formally  expressed  :  it 
may  speak  either  in  custom  or  in  specific  enactment.  Law 
may,  moreover,  be  the  will  either  of  a  primitive  family-com- 
munity such  as  we  see  in  the  earliest  periods  of  history,  or  of 
a  highly  organized,  fully  self-conscious  State  such  as  those  of 
our  own  day.  But  for  the  existence  of  Law  there  is  needed 
in  all  cases  alike  (1)  an  organic  community  capable  of  having 
a  will  of  its  own,  and  (2)  some  clearly  recognized  body  of  rules 
to  which  that  community  has,  whether  by  custom  or  enactment, 
given  life,  character,  and  effectiveness.  The  nature  of  each 
State,  therefore,  will  be  reflected  in  its  law ;  in  its  law,  too, 
will  appear  the  functions  with  which  it  charges  itself ;  and  in 
its  law  will  it  be  possible  to  read  its  history. 

1183.  The  Development  of  Law  :  its  Sources.  —  Law  thus 
follows  in  its  development,  with  slow,  sometimes  with  uneven, 
but  generally  with  quite  distinct  steps,  the  evolution  of  the 
character,  the  purposes,  and  the  will  of  the  organized  com- 
munity whose  creation  it  is.  The  sources  whence  it  springs, 
therefore,  are  as  various  as  the  means  by  which  an  organic 
community  can  shape  and  express  its  will  as  a  body  politic. 


LAW  :  ITS  NATURE  AND  DEVELOPMENT.  611 

1184.  1.  Custom.^  —  Of  course  the  earliest  source  of  Law  is 
custom,  and  custom  is  formed,  no  one  can  say  definitely  how, 
except  that  it  is  shaped  by  the  co-operative  action  of  the  whole 
community,  and  not  by  any  kingly  or  legislative  command. 
It  is  not  formed  always  in  the  same  way ;  but  it  always  rests 
upon  the  same  foundation,  upon  the  general  acceptance  of  a 
certain  course  of  action,  that  is,  as  best  or  most  convenient. 
Whether  custom  originate  in  the  well-nigh  accidental  formation 
of  certain  habits  of  action  or  in  a  conscious  effort  on  the  part 
of  a  community  to  adjust  its  practices  more  perfectly  to  its 
social  and  political  objects,  it  becomes,  when  once  it  has  been 
formed  and  accepted  by  the  public  authority,  a  central  part  of 
Law.  It  is  difficult,  if  not  impossible,  to  discover  the  exact 
point  at  which  custom  passes  from  the  early  inchoate  state  in 
which  it  is  merely  tending  to  become  the  express  and  determi- 
nate purpose  of  a  community  into  the  later  stage  in  which  it 
becomes  Law ;  but  we  can  say  with  assurance  that  it  becomes 
Law  only  when  it  wins  the  support  of  a  definite  authority 
within  the  community.  It  is  not  Law  if  men  feel  free  to 
depart  from  it. 

1185.  Under  the  reign  of  customary  law  that  state  of  things  actually 
did  exist  which  modern  law  still  finds  it  convenient  to  take  for  granted : 
everybody  knew  what  the  law  was.  The  Teutonic  hundred-moots,  for 
example  (sec.  654),  the  popular  assemblies  which  tried  cases  under  the 
early  polity  of  our  own  ancestors,  declared  the  law  by  the  public  voice ; 
the  people  themselves  determined  what  it  was  and  how  it  should  be 
applied.  Custom  grew  up  in  the  habits  of  the  people  ;  they  consciously 
or  unconsciously  originated  it ;  to  them  it  was  known  and  by  them  it 
was  declared. 

1186.  2.  Religion.  —  In  the  earliest  times  Custom  and  Ee- 
ligion  are  almost  indistinguishable ;  a  people's  customs  bear 
on  every  lineament  the  likeness  of  its  religion.  And  in  later 
stages  of  development  Keligion  is  still  a  prolific  source  of  Cus- 

1  I  adopt  here  the  classification  usual  in  English  writings  on  Jurispru- 
dence.   See,  e.g.,  T.  E.  Holland,  Jurisprudence,  pp.  48  et  seq. 


612  LAW:  ITS  NATURE  AND  DEVELOP^^IENT. 


torn.  No  primitive  community  contained  any  critic  who  could^ 
even  in  his  secret  thought,  separate  Law  from  Religion.  All 
rules  of  life  bore  for  the  antique  mind  the  same  sanction  (sec. 
30).  There  were  not  in  its  conception  rules  moral  and  rules 
political :  morals  and  religion  were  indistinguishable  parts  of 
one  great  indivisible  Law  of  Conduct.  Eeligion  and  Politics 
soon,  indeed,  came  to  have  different  ministers.  In  name  often, 
if  not  always  in  fact,  the  priest  was  distinct  from  the  magis- 
trate. But  throughout  a  very  long  development,  as  we  have 
seen  (sees.  50,  58,  69,  197),  the  magistrate  either  retained 
priestly  functions  or  was  dominated  by  rules  which  the  priest 
declared  and  of  which  the  priest  was  the  custodian. 

Thus  the  early  law  of  Rome  was  little  more  than  a  body  of  technical 
religious  rules,  a  system  of  means  for  obtaining  individual  rights 
through  the  proper  carrying  out  of  certain  religious  formulae  (sec.  197) ; 
and  it  marked  the  beginning  of  the  movement  of  Roman  law  towards 
a  broad  and  equitable  system  of  justice  when  these  rules  of  procedure 
were  changed  from  sacerdotal  secrets  into  public  law  by  the  publica- 
tion of  the  Twelve  Tables. 

1187.  3.  Adjudication.  —  One  of  the  busiest  and  one  of  the 

most  useful,  because  watchful,  open-minded,  and  yet  conserva- 
tive, makers  of  Law  under  all  systems  has  been  the  magistrate, 
the  Judge.  It  is  he  who  in  his  decisions  recognizes  and  adopts 
Custom,  and  so  gives  it  the  decisive  support  of  the  public 
power ;  it  is  he  who  shapes  written  enactments  into  suitability 
to  individual  cases  and  thus  gives  them  due  flexibility  and  a 
free  development.  He  is  the  authoritative  voice  of  the  com- 
munity in  giving  specific  application  to  its  Law :  and  in  doing 
this  he  necessarily  becomes,  because  an  interpreter,  also  a 
maker  of  Law.  Whether  deliberately  or  unconsciously,  in 
expounding  and  applying  he  moulds  and  expands  the  Law.  It 
is  his  legitimate  function  to  read  Law  in  the  light  of  his  own 
sober  and  conscientious  judgment  as  to  what  is  reasonable 
and  just  in  custom,  what  practicable,  rational,  or  equitable  in 
legislation. 


LAW  :  ITS  NATURE  AND  DEVELOPMENT. 


613 


1188.  It  is  this  'judge-made'  law  which  is  to  be  found,  and  is  there- 
fore so  diligently  sought  for,  in  the  innumerable  law  Reports  cited  in 
our  courts.  Except  under  extraordinary  circumstances,  our  courts  and 
those  of  England  will  always  follow  decisions  rendered  in  similar  cases 
by  courts  of  equal  jurisdiction  in  the  same  state.  A  fortiori  do  they 
follow  the  decisions  of  the  highest  courts :  by  these  they  are  in  a 
sense  bound.  In  the  courts  of  the  continent  of  Europe,  on  the  other 
hand,  decisions  are  listened  to  as  important  expressions  of  opinion,  but 
not  as  conclusive  authority :  are  heard  much  as  our  own  courts  or  those 
of  England  hear  the  decisions  of  courts  of  other  states  acting  under 
like  laws  or  similar  circumstances. 

1189.  4.  Equity.  —  Equity  too  is  judge-made  Law;  but  it 
is  made,  not  in  interpretation  of,  but  in  addition  to,  the  laws 
which  already  exist.  The  most  conspicuous  types  of  such 
Law  are  the  decisions  of  the  Roman  Praetor  (sees.  201,  202) 
and  those  of  the  English  Chancellor  (sec.  666).  These  decis- 
ions were  meant  to  give  relief  where  existing  law  afforded 
none.  The  Praetor  declared,  for  instance,  that  he  would  allow 
certain  less  formal  processes  than  had  hitherto  been  permitted 
to  secure  rights  of  property  or  of  contract,  of  marriage  or 
of  control,  etc.  The  English  Chancellor,  in  like  manner,  as 
keeper  of  the  king's  judicial  conscience,  supplied  remedies  in 
cases  for  which  the  Common  Law  had  no  adequate  processes, 
and  thus  relieved  suitors  of  any  hardships  they  might  other- 
wise suffer  from  the  fixity  or  excessive  formality  of  the  Com- 
mon Law,  and  enabled  them  in  many  things  to  obtain  their 
substantial  rights  without  technical  difficulty. 

1190.  After  the  official  decrees  of  the  Praetors  had  been  codified  by 
the  Praetor  Salvius  lulianus,  in  the  time  of  the  Emperor  Hadrian,  and 
still  more  after  they  had  been  embodied  in  the  Code  of  Justinian,  the 
Corpus  Juris  Civilis,  the  Praetor's  '  equity '  became  as  rigid  and  deter- 
minate as  the  law  which  it  had  been  its  function  to  mend  and  ameliorate. 
In  the  «ame  manner,  our  own  State  codes,  many  of  which  have  fused 
law  and  equity  in  the  same  courts  and  under  common  forms  of  proced- 
ure (sec.  955),  have  given  equity  the  sanction  and  consequently  the 
fixity  of  written  law.  The  English  Judicature  Act,  also,  of  1873,  merg- 
ing, as  it  does,  the  Common-law  and  Equity  courts  into  a  single  homo- 


614  LAW  :  ITS  NATURE  AND  DEVELOPMENT. 


geneous  system  (sec.  732),  shows  at  least  a  strong  tendency  in  the 
same  direction  to  exist  in  England.  The  adjustments  of  Equity  are 
less  needed  now  that  legislation  is  ever  active  in  mending  old  and 
creating  new  law  and,  when  necessary,  new  procedure. 

In  the  same  case  with  Equity  must  be  classed  the  numerous  so-called 
*  fictitious  actions '  which  were  the  invention  of  the  Common-law  courts 
and  which,  by  means  of  imaginary  suitors  or  imaginary  transactions, 
duly  recorded  as  if  real,  enabled  things  to  be  done  and  rights  acquired 
which  would  have  been  impossible  under  any  genuine  process  of  the 
Common  Law. 

1191.  5.  Scientific  Discussion.  —  Tlie  carefully  formed  opin- 
ions of  learned  text-writers  have  often  been  accepted  as  decis- 
ive of  the  Law:  more  often  under  the  Eoman  system,  however, 
than  under  our  own  (sees.  211-213),  though  even  we  have  our 
Cokes,  our  Blackstones,  our  Storys,  and  our  Kents,  whom  our 
courts  hear  with  the  greatest  possible  respect. 

1192.  6.  Legislation. — That  deliberate  formulation  of  new 
Law  to  which  the  name  Legislation  is  given  is  for  us  of  the 
modern  time,  of  course,  the  most  familiar  as  well  as  the  most 
prolific  source  of  Law.  For  us  Legislation  is  the  work  of  rep- 
resentative bodies  almost  exclusively ;  but  of  course  representa- 
tion is  no  part  of  the  essential  character  of  the  legislative  act. 
Absolute  magistrates  or  kings  have  in  all  stages-  of  history 
been,  under  one  system  or  another,  plenipotent  makers  of  laws. 
Whether  acting  under  the  sanction  of  Custom  or  under  the 
more  artificial  arrangements  of  highly  developed  constitutions, 
father  or  praetor,  king  or  archon  has  been  a  law-giver.  So,  too, 
the  assemblies  of  free  men  which,  alike  in  Greece  and  in  Rome, 
constituted  the  legislative  authority  were  not  representative, 
but  primary  bodies,  like  the  Landsgemeinden  of  the  smaller 
Swiss  cantons. 

1193.  Eepresentation  came  in  with  the  Germans ;  and  with 
the  critical  development  of  institutions  which  the  modern 
world  has  seen  many  new  phases  of  Legislation  have  appeared. 
Modern  Law  has  brought  forth  those  great  private  corporations 
whose  by-laws  are  produced  by  what  may  very  fitly  be  called 


LAW  :  ITS  NATURE  AND  DEVELOPMENT.  615 

private  legislative  action.  We  have,  too,  on  the  same  model, 
chartered  governments,  with  legislatures  acting  under  special 
grants  of  law-making  power  (sees.  826,  886,  887,  890,  1137). 

Legislation  has  had  and  is  having  a  notable  development, 
and  is  now  the  almost  exclusive  means  of  the  formulation  of 
new  Law.  Custom  of  the  older  sort,  which  gave  us  the  great 
Common  Law,  has  been  in  large  part  superseded  by  acts  of 
legislatures ;  Keligion  stands  apart,  giving  law  only  to  the 
conscience ;  Adjudication  is  being  more  and  more  restricted  by 
codification ;  Equity  is  being  merged  in  the  main  body  of  the 
Law  by  enactment;  Scientific  Discussion  now  does  hardly 
more  than  collate  cases :  all  means  of  formulating  Law  tend 
to  be  swallowed  up  in  the  one  great,  deep,  and  broadening 
source.  Legislation. 

1194.  Custom  Again.  —  Custom  now  enters  with  a  new 
aspect  and  a  new  method.  After  judges  have  become  the 
acknowledged  and  authoritative  mouthpieces  of  Equity  and 
of  the  interpretative  adaptation  of  customary  or  enacted  Law ; 
after  scientific  writers  have  been  admitted  to  power  in  the 
systematic  elucidation  and  development  of  legal  principles ; 
even  after  the  major  part  of  all  law-making  has  fallen  to  the 
deliberate  action  of  legislatures,  given  liberal  commission  to  act 
for  the  community.  Custom  still  maintains  a  presiding  and 
even  an  imperative  part  in  legal  history.  It  is  Custom,  the 
silent  and  unconcerted  but  none  the  less  prevalent  movement, 
that  is,  of  the  common  thought  and  action  of  a  community, 
which  recognizes  changes  of  circumstance  which  judges  would 
not,  without  its  sanction,  feel,  or  be,  at  liberty  to  regard  in 
the  application  of  old  enactments,  and  which  legislators  have 
failed  to  give  effect  to,  by  repeal  or  new  enactments.  Laws 
become  obsolete  because  silent  but  observant  and  imperative 
Custom  makes  evident  the  deadness  of  their  letter,  the  inap- 
plicability of  their  provisions.  Custom,  too,  never  ceases  to 
build  up  practices  legal  in  their  character  and  yet  wholly  out- 
side formal  Law,  constructing  even,  in  its  action  on  Congresses 


616  LAW:  ITS  NATURE  AND  DEVELOPMENT. 


and  Parliaments,  great  parts  of  great  constitutions  (sees.  688, 
1099, 1107).  It  constantly  maintains  the  great  forces  of  prec- 
edent and  opinion  which  daily  work  their  will,  under  every 
form  of  government,  upon  both  the  contents  and  the  adminis- 
tration of  Law.  Custom  is  Habit  under  another  name ;  and 
Habit  in  its  growth  continually  adjusts  itself,  indeed,  to  the 
standard  hxed  in  formal  Law,  but  also  compels  formal  Law  to 
conform  to  its  abiding  influences.  Habit  may  be  said  to  be 
the  great  Law  within  which  laws  spring  up.  Laws  can  extend 
but  a  very  little  way  beyond  its  limits.  They  may  help  it  to 
gradual  extensions  of  its  sphere  and  to  slow  modifications  of 
its  practices,  but  they  cannot  force  it  abruptly  or  disregard  it 
at  all  with  impunity. 

1195.  The  history  of  France  during  the  present  century  affords  a 
noteworthy  example  of  these  principles  in  the  field  of  constitutional  law. 
There  we  have  witnessed  this  singular  and  instructive  spectacle  :  a  people 
made  democratic  in  thought  by  the  operation  of  a  speculative  political 
philosophy  has  adopted  constitution  after  constitution  created  in  the 
exact  image  of  that  thought.  But  they  had,  to  begin  with,  absolutely 
no  democratic  habit  —  no  democratic  custom.  Gradually  that  habit 
has  grown,  fostered  amidst  the  developments  of  local  self-direction ; 
and  the  democratic  thought  has  penetrated,  wearing  the  body  of  prac- 
tice, its  only  vehicle  to  such  minds,  to  the  rural  populace.  Constitu- 
tions and  custom  have  thus  advanced  to  meet  one  another — constitu- 
tions compelled  to  adopt  precedent  rather  than  doctrine  as  their  basis, 
thought,  practical  experience  rather  than  the  abstract  conceptions  of 
philosophy ;  and  habit  constrained  to  receive  the  suggestions  of  written 
law.  Now,  therefore,  in  the  language  of  one  of  her  own  writers,  France 
has  "a  constitution  the  most  summary  in  its  text"  (leaving  most  room, 
that  is,  for  adjustments),  "the  most  customary  in  its  application,  the  most 
natural  outcome  of  our  manners  and  of  the  force  of  circumstances " 
that  she  has  yet  possessed.^  Institutions  too  theoretical  in  their  basis 
to  live  at  first,  have  nevertheless  furnished  an  atmosphere  for  the  French 
mind  and  habit :  that  atmosphere  has  affected  the  life  of  France,  —  that 
life  the  atmosphere.  The  result  some  day  to  be  reached  will  be  normal 
liberty,  political  vitality  and  vigor,  civil  virility. 

1  Albert  Sorel,  Montesquieu  (Am.  trans.),  pp.  200,  201. 


LAW:  ITS  NATURE  AND  DEVELOPMENT.  617 

1196.  Typical  Character  of  Roman  and  English  Law.  — 

Roman  law  and  English  law  are  peculiar  among  the  legal 
systems  of  western  Europe  for  the  freedom  and  individuality 
of  their  development.  Eome's  jus  civile  was,  indeed,  deeply 
modified  through  the  influence  of  the  jus  gentium ;  it  received 
its  philosophy  from  Greece,  and  took  slight  color  from  a  hun- 
dred sources ;  and  English  law,  despite  the  isolation  of  its 
island  home,  received  its  jury  system  and  many  another  sug- 
gestion from  the  continent,  and  has  been  much,  even  if  uncon- 
sciously, affected  in  its  development  by  the  all-powerful  law 
of  Rome.  But  English  and  Roman  law  alike  have  been  much 
less  touched  and  colored  than  other  systems  by  outside  influ- 
ences, and  have,  each  in  its  turn,  presented  to  the  world  what 
may  be  taken  as  a  picture  of  the  natural,  the  normal,  untram- 
melled evolution  of  law. 

1197.  The  Order  of  Legal  Development. — As  tested  by 
the  history  of  these  systems,  the  order  in  which  I  have  placed 
the  Sources  of  Law  is  seen  to  be  by  no  means  a  fixed  order  of 
historical  sequence.  Custom  is,  indeed,  the  earliest  fountain 
of  Law,  but  Religion  is  a  contemporary,  an  equally  prolific, 
and  in  some  stages  of  national  development  an  almost  identical 
source ;  Adjudication  comes  almost  as  early  as  authority  itself, 
and  from  a  very  antique  time  goes  hand  in  hand  with  Equity. 
Only  Legislation,  the  conscious  and  deliberate  origination  of 
Law,  and  Scientific  Discussion,  the  reasoned  development  of 
its  principles,  await  an  advanced  stage  of  growth  in  the  body 
politic  to  assert  their  influence  in  law-making.  In  Rome, 
Custom  was  hardly  separable  from  Religion,  and  hid  the 
knowledge  of  its  principles  in  the  breasts  of  a  privileged  sac- 
erdotal class ;  among  the  English,  on  the  contrary.  Custom 
was  declared  in  folk-moot  by  the  voice  of  the  people,  —  as  pos- 
sibly it  had  been  among  the  ancestors  of  the  Romans.  In 
both  Rome  and  England  there  was  added  to  the  influence  of 
the  magistrate  who  adopted  and  expanded  Custom  in  his  judg- 
ments the  influence  of  the  magistrate  (Praetor  or  Chancellor) 


618  LAW  :  ITS  NATURE  AND  DEVELOPMENT. 


who  gave  to  Law  the  flexible  principles  and  practices  of  Equity. 
And  in  both,  Legislation  eventually  became  the  only  source  of 
Law. 

1198.  But  in  Rome  Legislation  grew  up  under  circumstances 
entirely  Roman,  to  which  English  history  can  afford  no  par- 
allel. Eome  gave  a  prominence  to  scientific  discussion  such 
as  never  gladdened  the  hearts  of  philosophical  lawyers  in  Eng- 
land. The  opinions  of  distinguished  lawyers  were  given  high, 
almost  conclusive,  authority  in  the  courts ;  and  when  the  days 
of  codification  came,  great  texts  as  well  as  great  statutes  and 
decrees  were  embodied  in  the  codes  of  the  Empire.  The  leg- 
islation of  the  popular  assemblies,  which  Englishmen  might 
very  easily  have  recognized,  was  superseded  in  the  days  of  the 
Empire  by  imperial  edicts  and  imperial  codes  such  as  the  his- 
tory of  English  legislation  nowhere  shows ;  and  over  the 
formulation  of  these  codes  and  edicts  great  jurists  presided. 
The  only  thing  in  English  legal  practice  that  affords  a  parallel 
to  the  influence  of  lawyers  in  Eome  is  the  cumulative  author- 
ity of  judicial  opinions.  That  extraordinary  body  of  prece- 
dent, which  has  become  as  much  a  part  of  the  substance  of 
English  law  as  are  the  statutes  of  the  realm,  may  be  considered 
the  contribution  of  the  legal  profession  to  the  law  of  England. 

1199.  Savigny  would  have  us  seek  in  the  history  of  every  people  for 
a  childhood  in  which  law  is  full  of  picturesque  complexities,  a  period 
of  form  for  form's  sake  and  of  symbols  possessed  of  mystic  significance; 
a  period  of  adolescence  in  which  a  special  class  of  practical  jurists 
make  their  appearance  and  law  begins  to  receive  a  conscious  develop- 
ment; a  full  young  manhood  in  which  legislation  plays  a  busy  work  of 
legal  expansion  and  improvement ;  and  an  old  age  amusing  itself  with 
external  and  arbitrary  changes  in  legal  systems,  and  finally  killed  by  the 
letter  of  the  law.i 

1200.  The  Forces  Operative  in  the  Development  of  Law. 

—  The  forces  that  create  and  develop  law  are  thus  seen  to  be 

1  Bluntschli,  Geschichte  der  neueren  Staatswissenschaft,  ed.  1881,  pp.  627, 
628. 


LAW:  ITS  NATURE  AND  DEVELOPMENT.  619 

the  same  as  those  which  are  operative  in  national  and  political 
development.  If  that  development  bring  forth  monarchical 
forms  of  government,  if  the  circumstances  amidst  which  a 
people's  life  is  cast  eradicate  habits  of  local  self-rule  and  es- 
tablish habits  of  submission  to  a  single  central  authority  set 
over  a  compacted  state,  that  central  authority  alone  will  formu- 
late and  give  voice  to  Law.  If,  on  the  other  hand,  the  na- 
tional development  be  so  favorably  cast  that  habits  of  self- 
reliance  and  self-rule  are  fostered  and  confirmed  among  the 
people,  along  with  an  active  jealousy  of  any  too  great  concen- 
tration of  only  partially  responsible  power.  Law  will  more 
naturally  proceed,  through  one  instrumentality  or  another, 
from  out  the  nation  :  vox  legis,  vox  popuU.  But  in  the  one 
case  hardly  less  than  in  the  other  Law  will  express  not  the 
arbitrary,  self-originative  will  of  the  man  or  body  of  men  by 
whom  it  is  formulated,  but  such  rules  as  the  body  of  the  nation 
is  prepared  by  reason  of  its  habits  and  fixed  preferences  to 
accept.  The  function  of  the  framers  of  Law  is  a  function  of 
formulation  rather  than  of  origination :  no  step  that  they  can 
take  successfully  can  lie  far  apart  from  the  lines  along  which 
the  national  life  has  run.  Law  is  the  creation,  not  of  indi- 
viduals, but  of  the  special  needs,  the  special  opportunities,  the 
special  perils  or  misfortunes  of  communities.  No  '  law-maker ' 
may  force  upon  a  people  Law  which  has  not  in  some  sense 
been  suggested  to  him  by  the  circumstances  or  opinions  of  the 
nation  for  whom  he  acts.  Eulers,  in  all  states  alike,  exercise 
the  sovereignty  of  the  community,  but  cannot  exercise  any 
other.  The  community  may  supinely  acquiesce  in  the  power 
arrogated  to  himself  by  the  magistrate,  but  it  can  in  no  case 
make  him  independent  of  itself. 

1201.  Here  again  France  furnishes  our  best  illustration.  We  have 
a  vivid  confirmation  of  the  truths  stated  in  such  an  event  as  the  estab- 
lishment of  the  Second  Empire.  The  French  people  were  not  duped 
by  Louis  Napoleon.  The  facts  were  simply  these.  They  were  keenly 
conscious  that  they  were  making  a  failure  of  the  self-government  which 


620 


LAW:  ITS  NATURE  AND  DEVELOPMENT. 


they  were  just  then  attempting ;  they  wanted  order  and  settled  rule  in 
place  of  fears  of  revolution  and  the  existing  certainty  of  turbulent 
politics ;  and  they  took  the  simplest,  most  straightforward  and  evident 
means  of  getting  what  they  wanted.  The  laws  of  Napoleon  were  in 
a  very  real  sense  their  own  creation. 

1202.  The  Power  of  the  Community  must  be  behind  Law. 

—  The  law  of  some  particular  state  may  seem  to  be  the  com- 
mand of  a  minority  only  of  those  who  compose  the  state :  it 
may  even  in  form  utter  only  the  will  of  a  single  despot;  but 
in  reality  laws  which  issue  from  the  arbitrary  or  despotic  au- 
thority of  the  few  who  occupy  the  central  seats  of  the  state  can 
never  be  given  full  effect  unless  in  one  form  or  another  the 
power  of  the  community  be  behind  them.  Whether  it  be  an 
active  power  organized  to  move  and  make  itself  prevalent  or 
a  mere  inert  power  lying  passive  as  a  vast  immovable  buttress 
to  the  great  structure  of  absolute  authority,  the  power  of  the 
community  must  support  law  or  the  law  must  be  without  effect. 
The  bayonets  of  a  minority  cannot  long  successfully  seek  out 
the  persistent  disobediences  of  the  majority.  The  majority 
must  acquiesce  or  the  law  must  be  null. 

1203.  This  principle  is  strikingly  illustrated  in  the  inefficacy  of  the 
English  repressive  laws  in  Ireland.  The  consent  of  the  Irish  community 
is  not  behind  them,  though  the  strength  of  England  is,  and  they  fail 
utterly,  as  all  laws  must  which  lack  at  least  the  passive  acquiescence  of 
those  whom  they  concern. 

1204.  There  can  be  no  reasonable  doubt  that  the  power  of  Russia's 
Czar,  vast  and  arbitrary  as  it  seems,  derives  its  strength  from  the  Rus- 
sian people.  It  is  not  the  Czar's  personal  power ;  it  is  his  power  as  head 
of  the  national  church,  as  semi-sacred  representative  of  the  race  and 
its  historical  development  and  organization.  Its  roots  run  deep  into 
the  tenacious,  nourishing  soil  of  immemorial  habit.  The  Czar  repre- 
sents a  history,  not  a  caprice. 

Temporary,  fleeting  despots,  like  the  first  Napoleon,  lead  nations  with 
them  by  the  ears,  playing  to  their  love  of  glory,  to  their  sense  of  dignity 
and  honor,  to  their  ardor  for  achievement  and  their  desire  for  order. 

1205.  Roman  Law  an  Example. — The  law  of  Kome 

affords  in  this  respect  an  admirable  example  of  the  normal 


LAW  :  ITS  NATUKE  AND  DEVELOPMENT.  621 


character  of  law.  It  was  the  fundamental  thought  of  Roman 
law  that  it  was  the  will  of  the  Roman  people.  The  political 
liberty  of  the  Roman  consisted  in  his  membership  of  the  state 
and  his  consequent  participation,  either  direct  or  indirect,  in 
the  utterance  of  law.  As  an  individual  he  was  subordinated 
to  the  will  of  the  state  ;  but  his  own  will  as  a  free  burgess  was 
a  part  of  the  state's  will :  the  state  spoke  his  sovereignty.  He 
was  an  integral  part  of  the  organic  community,  his  own  power 
found  its  realization  in  the  absolute  potestas  et  majestas  populi. 
This  giant  will  of  the  people,  speaking  through  the  organs  of 
the  state,  constituted  a  very  absolute  power,  by  which  the 
individual  was  completely  dominated;  but  individual  rights 
were  recognized  in  the  equality  of  the  law,  in  its  purpose  to 
deal  equally  with  high  and  low,  with  strong  and  weak ;  and 
this  was  the  Roman  recognition  of  individual  liberty. 

1206.  The  Power  of  Habit.  —  Much  of  the  truth  with 
reference  to  the  character  and  sanctions  of  law  may  be  obscured 
by  a  failure  to  make  just  analysis  of  the  part  played  by  Habit 
in  giving  efficacy  to  enactment.  Legislators,  those  who  exer- 
cise the  sovereignty  of  a  community,  build  upon  the  habit  of 
their  so-called  'subjects.'  If  they  be  of  the  same  race  and 
sharers  of  the  same  history  as  those  whom  they  rule,  their 
accommodation  of  their  acts  to  the  national  habit  will  be  in 
large  part  unconscious :  that  habit  runs  in  their  veins  as  in  the 
veins  of  the  people.  If  they  be  invaders  or  usurpers,  they 
avoid  crossing  the  prejudices  or  the  long-abiding  practices  of 
the  nation  out  of  caution  or  prudence.  In  any  case  their 
activity  skims  but  the  surface,  avoids  the  sullen  depths  of  the 
popular  life.  They  work  arbitrary  decrees  upon  individuals, 
but  they  are  balked  of  power  to  turn  about  the  life  of  the 
mass  :  that  they  can  effect  only  by  slow  and  insidious  meas- 
ures which  almost  insensibly  deflect  the  habits  of  the  people 
into  channels  which  lead  away  from  old  into  new  and  different 
methods  and  purposes.  The  habit  of  the  nation  is  the  material 
on  which  the  legislator  works  ;  and  its  qualities  constitute  the 


622       law:  its  nature  and  development. 

limitations  of  his  power.  It  is  stubborn  material,  and  danger- 
ous. If  lie  venture  to  despise  it,  it  forces  him  to  regard  and 
humor  it ;  if  he  would  put  it  to  unaccustomed  uses,  it  balks 
him ;  if  he  seek  to  force  it,  it  will  explode  in  his  hands  and 
destroy  him.  The  sovereignty  is  not  his,  but  only  the  leader- 
ship. 

1207.  Law's  Utterance  of  National  Character.  —  Law  thus 
normally  speaks  the  character,  the  historical  habit  and  devel- 
opment of  each  nation.  There  is  no  universal  law,  but  for 
each  nation  a  law  of  its  own  which  bears  evident  marks  of 
having  been  developed  along  with  the  national  character, 
which  mirrors  the  special  life  of  the  particular  people  whose 
political  and  social  judgments  it  embodies  (sec.  1196).  The 
despot  may  be  grossly  arbitrary  ;  he  may  violate  every  princi- 
ple of  right  in  his  application  of  the  law  to  individuals  ;  he 
may  even  suspend  all  justice  in  individual  cases  ;  but  the  law, 
the  principles  which  he  violates  or  follows  at  pleasure,  he 
takes  from  the  people  whom  he  governs,  extracts  from  their 
habit  and  history.  What  he  changes  is  the  application  merely, 
not  the  principles,  of  justice ;  and  he  changes  that  application 
only  with  reference  to  a  comparatively  small  number  of  indi- 
viduals whom  he  specially  picks  out  for  his  enmity  or  dis- 
pleasure. He  cannot  violently  turn  about  the  normal  processes 
of  the  national  habit. 

1208.  Germanic  Law.  — We  have  in  Germanic  law  an 
example  of  the  influence  of  national  character  upon  legal 
systems  as  conspicuous  as  that  afforded  by  Eoman  law  itself, 
and  the  example  is  all  the  more  instructive  when  put  alongside 
of  the  Eoman  because  of  the  sharpness  of  the  contrasts 
between  Eoman  and  Germanic  legal  conceptions.  Although 
so  like  the  Eomans  in  practical  political  sagacity  and  common- 
sense  legal  capacity,  the  Germans  had  quite  other  conceptions 
as  to  the  basis  and  nature  of  law.  Their  law  spoke  no  such 
exaltation  of  the  public  power,  and  consequently  no  such 
intense  realization  of  organic  unity.    The  individual  German 


LAW:  ITS  NATURE  AND  DEVELOPMENT.  623 


was,  so  to  say,  given,  play  outside  the  law ;  his  rights  were  not 
relative,  but  absolute,  self-centred.  It  was  the  object  of  the 
public  polity  rather  to  give  effect  to  individual  worth  and  lib- 
erty than  to  build  together  a  compact,  dominant  community. 
German  law,  therefore,  took  no  thought  for  systematic  equal- 
ity, but  did  take  careful  thought  to  leave  room  for  the  fullest 
possible  assertion  of  that  individuality  which  must  inevitably 
issue  in  inequality.  It  was  a  flexible  framework  for  the  play 
of  individual  forces.  It  lacked  the  organic  energy,  the  united, 
triumphant  strength  of  the  Roman  system ;  but  it  contained 
untold  treasures  of  variety  and  of  individual  achievement.  It, 
no  less  than  Roman  law,  rested  broadly  upon  national  charac- 
ter ;  and  it  was  to  supply  in  general  European  history  what 
the  Roman  system  could  not  contribute. 

1209.  Sovereignty  :  Who  gives  Law  ?  —  If,  then,  law  be  a 
product  of  national  character,  if  the  power  of  the  community 
must  be  behind  it  to  give  it  efficacy,  and  the  habit  of  the  com- 
munity in  it  to  give  it  reality,  where  is  the  seat  of  sovereignty  ? 
Whereabouts  and  in  whom  does  sovereignt}'  reside,  and  what 
is  Sovereignty  ?  These,  manifestly,  are  questions  of  great  scope 
and  complexity,  and  yet  questions  central  to  a  right  under- 
standing of  the  nature  and  genesis  of  law.  It  will  be  best  to 
approach  our  answers  to  them  by  way  of  illustrations. 

In  England,  sovereignty  is  said  to  rest  with  the  legislative 
power  :  with  Parliament  acting  with  the  approval  of  the  Crown, 
or,  not  to  disuse  an  honored  legal  fiction,  with  the  Crown  act- 
ing with  the  assent  of  Parliament.  Whatever  an  Act  of  Par- 
liament prescribes  is  law,  even  though  it  contravene  every 
principle,  constitutional  or  only  of  private  right,  recognized 
before  the  passage  of  the  Act  as  inviolable.  Such  is  the 
theory.  The  well-known  fact  is,  that  Parliament  dare  do 
nothing  that  will  even  seem  to  contravene  principles  held  to 
be  sacred  in  the  sphere  either  of  constitutional  privilege  or 
private  right.  Should  Parliament  violate  such  principles,  their 
action  would  be  repudiated  by  the  nation,  their  will,  failing 


624  LAW  :  ITS  NATUKE  AND  DEVELOPMENT. 

to  become  indeed  law,  would  pass  immediately  into  the  limbo 
of  things  repealed ;  Parliament  itself  would  be  purged  of  its 
offending  members.  Parliament,  then,  is  master,  is  an  utterer 
of  valid  commands,  only  so  far  as  it  interprets,  or  at  least  does 
not  cross,  the  wishes  of  the  people.  Whether  or  not,  therefore, 
it  be  possible  to  say  with  the  approval  of  those  who  insist  upon 
maintaining  the  rules  of  a  strict  abstract  logic  that  the  sov- 
ereignty of  Parliament  is  limited  de  Jure,  that  is,  in  law,  it  is 
manifestly  the  main  significant  truth  of  the  case  that  parlia- 
mentary sovereignty  is  most  imperatively  limited  de  facto,  in 
fact.  Its  actual  power  is  not  a  whit  broader  for  having  a  free 
field  in  law,  that  is,  above  the  fences,  so  long  as  the  field  in 
which  it  really  moves  is  fenced  high  about  by  firm  facts. 

1210.  Again,  it  is  said,  apparently  with  a  quite  close  regard 
for  the  facts,  that  in  Eussia  sovereignty  is  lodged  with  the 
Czar,  the  supreme  master  "  of  all  the  Russias."  That  his  will 
is  law  Siberia  attests  and  Nihilism  recognizes.  But  is  there 
no  de  facto  limitation  to  his  supremacy  ?  How  far  could  he  go 
in  the  direction  of  institutional  construction  ?  How  far  could 
he  succeed  in  giving  Eussia  at  once  and  out  of  hand  the  insti- 
tutions, and  Eussians  the  liberties,  of  the  United  States  and  its 
people  ?  Plow  far  would  such  a  gift  be  law  ?  Only  so  far  as 
life  answered  to  its  word  of  command.  Only  so  far  as  Eus- 
sian  habit,  schooled  by  centuries  of  obedience  to  a  bureau- 
cracy, could  and  would  respond  to  its  invitation.  Only  so  far, 
in  a  word,  as  the  new  institutions  were  accepted.  The  meas- 
ure of  the  Czar's  sovereignty  is  the  habit  of  his  people ;  and 
not  their  habit  only,  but  their  humor  also,  and  the  humor  of 
his  officials.  His  concessions  to  the  restless  spirit  of  his  army, 
to  the  prejudices  of  his  court,  and  to  the  temper  of  the  mass 
of  his  subjects,  his  means  of  keeping  this  side  assassination  or 
revolution,  nicely  mark  the  boundaries  of  his  sovereignty. 

1211.  Sovereignty,  therefore,  as  ideally  conceived  in  legal 
theory,  nowhere  actually  exists.  The  sovereignty  which  does 
exist  is  something  much  more  vital,  though,  like  most  living 


law:  its  nature  and  development.  625 

things,  much  less  easily  conceived.  It  is  the  will  of  an  organ- 
ized independent  community,  whether  that  will  speak  in  acqui- 
escence merely,  or  in  active  creation  of  the  forces  and  conditions 
of  politics.  The  kings  or  parliaments  who  serve  as  its  vehicles 
utter  it,  but  they  do  not  possess  it.  Sovereignty  resides  in 
the  community ;  but  its  organs,  whether  those  organs  be 
supreme  magistrates,  busy  legislatures,  or  subtle  privileged 
classes,  are  as  various  as  the  conditions  of  historical  growth 
have  commanded. 

1212.  Certain  Legal  Conceptions  Universal.  —  The  corre- 
spondence of  law  with  national  character,  its  basis  in  national 
habit,  does  not  deprive  it  of  all  universal  characteristics. 
Many  common  features  it  does  wear  among  all  civilized  peo- 
ples. As  the  Eomans  found  it  possible  to  construct  from  the 
diversified  systems  of  law  existing  among  the  subject  peoples 
of  the  Mediterranean  basin,  a  certain  number  of  general  max- 
ims of  justice  out  of  which  to  construct  the  foundation  of  their 
jus  gentium,  so  may  jurists  to-day  discover  in  all  systems  of 
law  alike  certain  common  moral  judgments,  a  certain  evidence 
of  unity  of  thought  regarding  the  greater  principles  of  equity. 
There  is  a  common  legal  conscience  in  mankind. 

Thus,  for  example,  the  sacredness  of  human  life;  among  all  Aryan 
nations  at  least,  the  sanctity  of  the  nearer  family  relationships  ;  in  all 
systems  at  all  developed,  the  plainer  principles  of  '  mine  '  and  '  thine ' ; 
the  obligation  of  promises ;  many  obvious  duties  of  man  to  man  sug- 
gested by  the  universal  moral  consciousness  of  the  race,  receive  recog- 
nition under  all  systems  alike.  Sometimes  resemblances  between 
systems  the  most  widely  separated  in  time  and  space  run  even  into 
ceremonial  details,  such  as  the  emblematic  transfer  of  propertj',  and  into 
many  details  of  personal  right  and  obligation. 

1213.  Law  and  Ethics.  —  It  by  no  means  follows,  however, 
that  because  law  thus  embodies  moral  judgments  of  the  race 
on  many  points  of  personal  relation  and  individual  conduct,  it 
is  to  be  considered  a  sort  of  positive  concrete  Ethics,  —  Ethics 
crystallized  into  definite  commands  towards  which  the  branch 


626  LAW  :  ITS  NATURE  AND  DEVELOPMENT. 

of  culture  which,  we  call  '  Ethics '  stands  related  as  theory  to 
practice.  Ethics  concerns  the  whole  walk  and  conversation 
of  the  individual,  it  touches  the  rectitude  of  each  man's  life, 
the  truth  of  his  dealings  with  his  own  conscience,  the  whole 
substance  of  character  and  conduct,  righteousness  both  of  act 
and  of  mental  habit.  Law,  on  the  other  hand,  concerns  only 
man's  life  in  society.  It  not  only  confines  itself  to  controlling 
the  outward  acts  of  men ;  it  limits  itself  to  those  particular 
acts  of  man  to  man  which  can  be  regulated  by  the  public 
authority,  and  which  can  be  regulated  in  accordance  with  uni- 
form rules  applicable  to  all  alike  and  in  an  equal  degree.  It 
does  not  essay  to  punish  untruthfulness  as  such,  it  only  annuls 
contracts  obtained  by  fraudulent  misrepresentation  and  makes 
good  such  pecuniary  damage  as  the  deceit  may  have  entailed ; 
it  does  not  censure  ingratitude  or  any  of  the  subtler  forms  of 
faithlessness,  it  only  denounces  its  penalties  against  open  and 
tangible  acts  of  dishonesty ;  it  does  not  assume  to  be  the 
guardian  of  men's  character,  it  only  stands  with  a  whip  for 
those  who  give  overt  proof  of  bad  character  in  their  dealings 
with  their  fellow-men.  Its  limitations  are  thus  limitations 
both  of  kind  and  of  degree.  It  addresses  itself  to  the  regula- 
tion of  outward  conduct  only :  that  is  its  limitation  of  kind ; 
and  it  regulates  outward  conduct  only  so  far  as  workable  and 
uniform  rules  can  be  found  for  its  regulation  :  that  is  its  limi- 
tation of  degree. 

1214.  Mala  Prohibita.  —  Law  thus  plays  the  role  neither 
of  conscience  nor  of  Providence.  More  than  this,  it  follows 
standards  of  policy  only,  not  absolute  standards  of  right  and 
^rrong.  Many  things  that  are  wrong,  even  within  the  sphere 
of  social  conduct,  it  does  not  prohibit;  many  things  not 
wrong  in  themselves  it  does  prohibit.  It  thus  creates,  as  it 
were,  a  new  class  of  wrongs,  relative  to  itself  alone :  mala  pro- 
hibita, things  wrong  because  forbidden.  In  keeping  the  com- 
mands of  the  state  regarding  things  fairly  to  be  called  indif- 
ferent in  themselves  men  are  guided  by  their  legal  conscience. 


LAW  :  ITS  NATURE  AND  DEVELOPMENT. 


627 


Society  rests  upon  obedience  to  the  laws  :  laws  determine  the 
rules  of  social  convenience  as  well  as  of  social  right  and  wrong ; 
and  it  is  as  necessary  for  the  ]3erfecting  of  social  relationships 
that  the  rules  of  convenience  be  obeyed  as  it  is  that  obedience 
be  rendered  to  those  which  touch  more  vital  matters  of  conduct. 

Thus  it  cannot  be  said  to  be  inherently  wrong  for  a  man  to  marry 
his  deceased  wife's  sister ;  but  if  the  laws,  seeking  what  is  esteemed  to 
be  a  purer  order  of  family  relationships,  forbid  such  a  marriage,  it  be- 
comes malum  prohibitum  :  it  is  wrong  because  illegal. 

It  would  certainly  not  be  wrong  for  a  trustee  to  buy  the  trust  estate 
under  his  control  if  he  did  so  in  good  faith  and  on  terms  manifestly  ad- 
vantageous to  the  persons  in  whose  interest  he  held  it ;  but  it  is  contrary 
to  wise  public  policy  that  such  purchases  should  be  allowed,  because 
a  trustee  would  have  too  many  opportunities  for  unfair  dealing  in  such 
transactions.  The  law  will  under  no  circumstances  hold  the  sale  of  a 
trust  estate  to  the  trustee  valid.  Such  purchases,  however  good  the 
faith  in  which  they  are  made,  are  mala  prohihita. 

Or  take,  as  another  example,  police  regulations  whose  only  object  is 
to  serve  the  convenience  of  society  in  crowded  cities.  A  street  parade, 
with  bands  and  banners  and  men  in  uniform  is  quite  harmless  and  is 
immensely  pleasing  to  those  who  love  the  glitter  of  epaulettes  and  brass 
buttons  and  the  blare  of  trumpets ;  but  police  regulations  must  see  to  it 
that  city  streets  are  kept  clear  for  the  ordinary  daily  movements  of  the 
busy  city  population,  and  to  parade  without  license  is  vialum  prohibitum. 

1215.  In  all  civilized  states  law  has  long  since  abandoned 
all  attempts  to  regulate  conscience  or  opinion ;  it  would  find 
it,  too,  both  fruitless  and  unwise  to  essay  any  regulation  of 
conduct,  however  reprehensible  in  itself,  which  did  not  issue 
in  definite  and  tangible  acts  of  injury  to  others;  but  it  does 
seek  to  command  the  outward  conduct  of  men  in  their  palpa- 
ble dealings  with  each  other  in  society.  Law  is  the  mirror  of 
active,  organic  political  life.  It  may  be  and  is  instructed  by 
the  ethical  judgments  of  the  community,  but  its  own  prov- 
ince is  not  distinctively  ethical ;  it  may  regard  religious  prin- 
ciple, but  it  is  not  a  code  of  religion.  Ethics  has  been  called 
the  science  of  the  well-being  of  man,  law  the  science  of  his 
right  civil  conduct.    Ethics  concerns   the   development  of 


628  LAW:  ITS  NATURE  AND  DEVELOPMENT. 

character;  religion,  the  development  of  man's  relations  with 
God ;  law,  the  development  of  men's  relations  to  each  other  in 
society.  Ethics,  says  Mr.  Sidgwick,  "is  connected  with  poli- 
tics so  far  as  the  well-being  of  any  individual  man  is  bound 
up  with  the  well-being  of  his  society." 

1216.  International  Law.  —  The  province  of  international 
law  may  be  described  as  a  province  half  way  between  the 
province  of  morals  and  the  province  of  positive  law.  It  is  law 
without  a  forceful  sanction.  There  is  no  earthly  power  of 
which  all  nations  are  subjects;  there  is  no  power,  therefore, 
to  enforce  obedience  to  rules  of  conduct  as  between  nation 
and  nation.  International  law  is,  moreover,  a  law  which  rests 
upon  those  uncodified,  unen acted  principles  of  right  action,  of- 
justice,  and  of  consideration  which  have  so  universally  ob- 
tained the  assent  of  men's  consciences,  which  have  so  univer- 
sal an  acceptance  in  the  moral  judgments  of  men  everywhere, 
that  they  have  been  styled  Laws  of  Nature  (sees.  208-9),  but 
which  have  a  nearer  kinship  to  ethical  maxims  than  to  posi- 
tive law.  "The  law  of  nations,"  says  Bluntschli,  "is  that 
recognized  universal  Law  of  Nature  which  binds  different 
states  together  in  a  humane  jural  society,  and  which  also 
secures  to  the  members  of  different  states  a  common  pro- 
tection of  law  for  their  general  human  and  international 
rights."  ^  Its  only  formal  and  definite  foundations  aside  from 
the  conclusions  of  those  writers  who,  like  Grotius  and  Vattel, 
have  given  to  it  distinct  statements  of  what  they  conceived  to 
be  the  leading,  the  almost  self-evident  principles  of  the  Law 
of  Nature,  are  to  be  found  in  the  treaties  by  which  states, 
acting  in  pairs  or  in  groups,  have  agreed  to  be  bound  in  their 
relations  with  each  other,  and  in  such  principles  of  interna- 
tional action  as  have  found  their  way  into  the  statutes  or  the 
established  judicial  precedents  of  enlightened  individual  states. 
More  and  more,  international  conventions  come  to  recognize 


1  Das  Volkerrecht,  sec,  I. 


LAW  :  ITS  NATTTEE  AND  DEVELOPMENT. 


629 


in  their  treaties  certain  elements  of  right,  of  equity,  and  of 
comity  as  settled,  as  always  to  be  accepted  in  transactions 
between  nations.  The  very  jealousies  of  European  nations 
have  contributed  to  swell  the  body  of  accepted  treaty  princi- 
ples. As  the  practice  of  concerted  action  by  the  states  of  the 
continent  of  Europe  concerning  all  questions  of  large  interest, 
the  practice  of  holding  great  Congresses  like  those  of  Vienna 
in  1815,  of  Paris  in  1856,  and  of  Berlin  in  1878  has  grown 
into  the  features  of  a  custom,  so  has  the  body  of  principles 
which  are  practically  of  universal  recognition  increased.  In- 
ternational law,  says  Dr.  Bulmerincq,  "is  the  totality  of  legal 
rules  and  institutions  which  have  developed  themselves  touch- 
ing the  relations  of  states  to  one  another."  ^ 

1217.  International  law  is,  therefore,  not  law  at  all  in  the 
strict  sense  of  the  term.  It  is  not,  as  a  whole,  the  will  of  any 
state :  there  is  no  authority  set  above  the  nations  whose  com- 
mand it  is.  In  one  aspect,  the  aspect  of  Bluntschli's  defini- 
tion, it  is  simply  the  body  of  rules,  developed  out  of  the 
common  moral  judgments  of  the  race,  which  ought  to  govern 
nations  in  their  dealings  with  each  other.  Looked  at  from 
another,  from  Dr.  Bulmerincq's,  point  of  view,  it  is  nothing 
more  than  a  generalized  statement  of  the  rules  which  nations 
have  actually  recognized  in  their  treaties  with  one  another, 
made  from  time  to  time,  and  which  by  reason  of  such  prece- 
dents are  coming  more  and  more  into  matter-of-course  accept- 
ance. 

These  rules  concern  the  conduct  of  war,  diplomatic  intercourse,  the 
rights  of  citizens  of  one  country  living  under  the  dominion  of  another, 
jurisdiction  at  sea,  etc.  Extradition  principles  are  settled  almost  always 
by  specific  agreement  between  country  and  country,  as  are  also,  of  course, 
commercial  arrangements,  fishing  rights,  and  all  similar  matters  not  of 
universal  bearing.  But  even  in  such  matters  example  added  to  example 
is  turning  nations  in  the  direction  of  uniform  principles,  such,  for  in- 

1  Das  Vdlkerrecht  (in  Marquardsen's  Handbuch,  Vol.  I.),  sec.  I.  of  the 
monograph. 


630  LAW:  ITS  NATURE  AND  DEVELOPMENT. 

stance,  as  this,  that  political  offences  shall  not  be  included  among  ex- 
traditable crimes,  unless  they  involve  ordinary  crimes  of  a  very  heinous 
nature,  such  as  murder. 

1218.  Laws  of  Nature  and  Laws  of  the  State.  —  The 

analogy  between  political  laws,  the  laws  which  speak  the  will 
of  the  state,  and  natural  laws,  the  laws  which  express  the 
orderly  succession  of  events  in  nature,  has  often  been  dwelt 
upon,  and  is  not  without  instructive  significance.  In  the  one 
set  of  laws  as  in  the  other,  there  is,  it  would  seem,  a  uniform 
prescription  as  to  the  operation  of  the  forces  that  make  for  life. 
The  analogy  is  most  instructive,  however,  where  it  fails :  it  is 
more  instructive,  that  is,  to  note  the  contrasts  between  the 
laws  of  nature  and  laws  of  the  state  than  to  note  such  like- 
ness as  exists  between  them.  The  contrasts  rather  than  the 
resemblances  serve  to  make  evident  the  real  nature  of  politi- 
cal regulation.  "  Whenever  we  have  made  out  by  careful 
and  repeated  observation,"  says  Professor  Huxley,  "that 
something  is  always  the  cause  of  a  certain  effect,  or  that  cer- 
tain events  always  take  place  in  the  same  order,  we  speak  of 
the  truth  thus  discovered  as  a  law  of  nature.  Thus  it  is  a 
law  of  nature  that  anything  heavy  falls  to  the  ground  if  it  is 
unsupported.  .  .  .  But  the  laws  of  nature  are  not  the  causes 
of  the  order  of  nature,  but  only  our  way  of  stating  as  much 
as  we  have  made  out  of  that  order.  Stones  do  not  fall  to  the 
ground  in  consequence  of  the  law  just  stated,  as  people  some- 
times carelessly  say ;  but  the  law  is  a  way  of  asserting  that 
which  invariably  happens  when  heavy  bodies  at  the  surface  of 
the  earth,  stones  among  the  rest,  are  free  to  move."  AYhat- 
ever  analogies  may  exist  between  such  generalized  statements 
of  physical  fact  and  the  rules  in  accordance  with  which  men 
are  constrained  to  act  in  organized  civil  society  it  may  be 
profitable  for  the  curious  carefully  to  inquire  into.  What  it 
is  most  profitable  for  the  student  of  politics  to  observe  is  the 
wide  difference  between  the  two,  which  Professor  Huxley  very 
admirably  states  as  follows :  "  Human  law  consists  of  com- 


LAW  :  ITS  NATURE  AND  DEVELOPMENT.  631 


mands  addressed  to  voluntary  agents,  which  they  may  obey  or 
disobey ;  and  the  law  is  not  rendered  null  and  void  by  being 
broken,  ^^atural  laws,  on  the  other  hand,  are  not  commands, 
but  assertions  respecting  the  invariable  order  of  nature ;  and 
they  remain  law  only  so  long  as  they  can  be  shown  to  express 
that  order.  To  speak  of  the  violation  or  suspension  of  a  law 
of  nature  is  an  absurdity.  All  that  the  phrase  can  really 
mean  is  that,  under  certain  circumstances,  the  assertion  con- 
tained in  the  law  is  not  true ;  and  the  just  conclusion  is,  not 
that  the  order  of  nature  is  interrupted,  but  that  we  have  made 
a  mistake  in  stating  that  order.  A  true  natural  law  is  a  uni- 
versal rule,  and,  as  such,  admits  of  no  exception."  ^  In  brief, 
human  choice  enters  into  the  laws  of  the  state,  whereas  from 
natural  laws  that  choice  is  altogether  excluded :  they  are 
dominated  by  fixed  necessity.  Human  choice,  indeed,  enters 
every  part  of  political  law  to  modify  it.  It  is  the  element  of 
change ;  and  it  has  given  to  the  growth  of  law  a  variety,  a 
variability,  and  an  irregularity  which  no  other  power  could 
have  imparted. 

1219.  Limitations  of  Political  Law.  —  We  have  thus  laid 
bare  to  our  view  some  of  the  most  instructive  characteristics 
of  political  law.  The  laws  of  nature  state  effects  invariably 
produced  by  forces  of  course  adequate  to  produce  them ;  but 
behind  political  laws  there  is  not  always  a  force  adequate  to 
produce  the  effects  which  they  are  designed  to  produce.  The 
force,  the  sanction,  as  jurists  say,  which  lies  behind  the  laws 
of  the  state  is  the  organized  armed  power  of  the  community  : 
compulsion  raises  its  arm  against  the  man  who  refuses  to  obey 
(sec.  1154).  But  the  public  power  may  sleep,  may  be  inatten- 
tive to  breaches  of  law,  may  suffer  itself  to  be  bribed,  may  be 
outwitted  or  thwarted  :  laws  are  not  always  '  enforced.'  This 
element  of  weakness  it  is  which  opens  up  to  us  one  aspect  at 
least  of  the  nature  of  Law  :  Law  is  no  more  efficient  than  the 

1  These  passages  are  takeu  from  Professor  Huxley's  Science  Primer. 
Introductory. 


632  LAW  :  ITS  NATURE  AND  DEVELOPMENT. 

state  whose  will  it  utters.  The  law  of  Turkey  shares  all  the 
imperfections  of  the  Turkish  power ;  the  laws  of  England  be- 
speak in  their  enforcement  the  efficacy  of  English  government. 
Good  laws  are  of  no  avail  under  a  bad  government ;  a  weak, 
decadent  state  may  speak  the  highest  purposes  in  its  statutes 
and  yet  do  the  worst  things  in  its  actual  administration.  Com- 
monly, however,  law  embodies  the  real  purposes  of  the  state, 
and  its  enforcement  is  a  matter  of  administrative  capacity  or 
of  concerted  power  simply. 

1220.  Public  Law.  —  The  two  great  divisions  under  which 
law  may  best  be  studied  are  these  :  (1)  Public  Law,  (2)  Pri- 
vate Law.  Public  law  is  that  which  immediately  concerns  the 
being,  the  structure,  the  functions,  and  the  methods  of  the 
state.  Taken  in  its  full  scope,  it  includes  not  only  what  we 
familiarly  know  as  constitutional  law,  but  also  what  is  known 
as  administrative  law,  and  all  that  part  of  criminal  law  which 
affects  crimes  against  the  state  itself,  against  the  community 
as  a  whole.  In  brief,  it  is  that  portion  of  law  which  deter- 
mines a  state's  own  character  and  its  relations  to  its  citizens. 

1221.  Private  Law.  —  Private  law,  on  the  other  hand,  is 
that  portion  of  positive  law  which  secures  to  the  citizen  his 
rights  as  against  the  other  citizens  of  the  state.  It  seeks  to 
effect  justice  between  individual  and  individual ;  its  sphere  is 
the  sphere  of  individual  right  and  duty. 

1222.  It  is  to  the  Romans  that  we  are  indebted  for  a  first  partial 
recognition  of  this  important  division  in  the  province  of  Law,  though 
later  times  have  given  a  different  basis  to  this  distinction.  I  say  '  in- 
debted because  the  distinction  between  public  and  private  law  has  the 
most  immediate  connections  with  individual  liberty.  Without  it,  we 
have  the  state  of  affairs  that  existed  in  Greece,  where  there  was  no 
sphere  which  was  not  the  state's  (sec.  1236)  ;  and  where  the  sphere  of 
the  state's  relations  to  the  individual  was  as  wide  as  the  sphere  of  the 
law  itself.  Individual  liberty  can  exist  only  where  it  is  recognized  that 
there  are  rights  which  the  state  does  not  create,  but  only  secures. 

1223.  Jurisprudence.  —  Jurisprudence  is  a  term  of  much 
latitude,  but  must  be  taken  strictly  to  mean  the  Science  of 


LAW:  ITS  NATURE  AND  DEVELOPMENT.  633 


Law.  The  science  of  law,  of  course,  is  complete  only  when  it 
has  laid  bare  both  the  nature  and  the  genesis  of  law :  the  na- 
ture of  law  must  be  obscure  until  its  genesis  and  the  genesis 
of  the  conceptions  upon  which  it  is  based  have  been  explored ; 
and  that  genesis  is  a  matter,  not  of  logical  analysis,  but  of  his- 
tory. Many  writers  upon  jurisprudence,  therefore,  have  in- 
sisted upon  the  historical  method  of  study  as  the  only  proper 
method.  They  have  sought  in  the  history  of  society  and  of 
institutions  the  birth  and  development  of  jural  conceptions, 
the  growths  of  practice  which  have  expanded  into  the  law  of 
property  or  of  torts,  the  influences  which  have  contributed  to 
the  orderly  regulation  of  man's  conduct  in  society. 

1224.  In  the  hands  of  another  school  of  writers,  however, 
jurisprudence  has  been  narrowed  to  the  dimensions  of  a  science 
of  law  in  its  modern  aspects  only.  They  seek  to  discover,  by 
an  analysis  of  law  in  its  present  full  development,  the  rights 
which  habitually  receive  legal  recognition  and  the  methods  by 
which  states  secure  to  their  citizens  their  rights,  and  enforce 
upon  them  their  duties,  by  positive  rules  backed  by  the  abun- 
dant sanction  of  the  public  power.  In  their  view,  not  only  is 
the  history  of  law  not  jurisprudence,  but,  except  to  a  very 
limited  extent,  it  is  not  even  the  material  of  jurisprudence. 
Its  material  is  law  as  it  presently  exists  :  the  history  of  that 
law  is  only  a  convenient  light  in  which  the  real  content  and 
purpose  of  existing  law  may  be  made  plainer  to  the  analyst. 
The  conclusions  of  these  writers  are  subject  to  an  evident  lim- 
itation, therefore ;  their  analysis  of  law,  being  based  upon 
existing  legal  systems  alone  and  taking  the  fully  developed 
law  for  granted,  applies  to  law  in  the  earlier  stages  of  society 
only  by  careful  modification,  only  by  more  or  less  subtle  and 
ingenious  accommodation  of  the  meaning  of  its  terms. 

1225.  Historical  jurisprudence  alone,  —  a  science  of  law, 
that  is,  constructed  by  means  of  the  historical  analysis  of  law 
and  always  squaring  its  conclusions  with  the  history  of  society, 
—  can  serve  the  student  of  politics.    The  processes  of  analyti- 


634  LAW:  ITS  NATURE  AND  DEVELOPMENT. 


cal  jurisprudence,  however,  having  been  conducted  by  minds 
of  the  greatest  subtlety  and  acuteness,  serve  a  very  useful 
purpose  in  supplying  a  logical  structure  of  thought  touching 
full-grown  systems  of  law. 

1226.  The  Analytical  Account  of  Law.  —  In  the  thought 
of  the  analytical  school  every  law  is  a  command,  "an  order 
issued  by  a  superior  to  an  inferior."  "Every  positive  law  is 
'set  by  a  sovereign  person,  or  sovereign  body  of  persons,  to 
a  member  or  members  of  the  independent  political  society 
wherein  that  person  or  body  of  persons  is  sovereign  or  supe- 
rior.' "  In  its  terms,  manifestly,  such  an  analysis  applies  only 
to  times  when  the  will  of  the  state  is  always  spoken  by  a  defi- 
nite authority ;  not  with  the  voice  of  custom,  which  proceeds 
no  one  knows  whence ;  not  with  the  voice  of  religion,  which 
speaks  to  the  conscience  as  well  as  to  the  outward  life,  and 
whose  sanctions  are  derived  from  the  unseen  power  of  a  super- 
natural being ;  nor  yet  with  the  voice  of  scientific  discussion, 
whose  authors  have  no  authority  except  that  of  clear  thought ; 
but  with  the  distinct  accents  of  command,  with  the  voice  of 
the  judge  and  the  legislator. 

1227.  The  Analytical  Account  of  Sovereignty.  —  The  analytical 

account  of  sovereignty  is  equally  clear-cut  and  positive.  Laws,  "being 
commands,  emanate  from  a  determinate  source,"  from  a  sovereign  au- 
thority ;  and  analytical  jurisprudence  is  very  strict  and  formal  in  its 
definition  of  sovereignty.  A  sovereign  "is  a  determinate  person,  or 
body  of  persons,  to  whom  the  bulk  of  the  members  of  an  organized 
community  are  in  the  habit  of  rendering  obedience  and  who  are  them- 
selves not  in  the  habit  of  rendering  obedience  to  any  human  superior." 

It  follows,  of  course,  that  no  organic  community  which  is  not  in- 
dependent can  have  a  law  of  its  own.  The  law  of  the  more  fully 
developed  English  colonies,  for  example,  though  it  is  made  by  the 
enactment  of  their  own  parliaments,  is  not  law  by  virtue  of  such  enact- 
ment, because  those  parliaments  are  in  the  habit  of  being  obedient  to 
the  authorities  in  London  and  are  not  themselves  sovereign,  therefore. 
The  sovereignty  which  lies  back  of  all  law  in  the  colonies  is  said  to  be 
the  sovereignty  of  the  parliament  of  England. 

1228.  It  would  seem  to  follow  that  our  own  federal  authorities  are 


law:  its  natltke  and  development. 


G35 


sovereign.  They  are  a  determinate  body  of  persons  to  whom  the  bulk 
of  the  nation  is  habitually  obedient  and  who  are  themselves  obedient 
to  no  human  superior.  But  then  what  of  the  authority  of  tlie  states  in 
that  great  sphere  of  action  which  is  altogether  and  beyond  dispute  their 
own  (sec.  880),  which  the  federal  authorities  do  not  and  cannot  enter, 
within  which  their  own  people  are  habitually  obedient  to  them,  and  in 
which  they  are  not  subject  to  any  earthly  superior  ?  It  has  been  the 
habit  of  all  our  greater  writers  and  statesmen  to  say  that  with  us 
sovereignty  is  divided ;  but  the  abstract  sovereignty  of  which  the  legal 
analyst  speaks  is  held  to  be  indivisible :  it  must  be  whole.  Analysis, 
therefore,  is  driven  to  say  that  with  us  sovereignty  rests  in  its  entirety 
with  that  not  very  determinate  body  of  persons,  the  people  of  the 
United  States,  the  powers  of  sovereignty  resting  with  the  state  and  federal 
authorities  by  delegation  from  the  people. 

The  difficulty  of  applying  the  analytical  account  of  sovereignty  to 
our  own  law  is  in  large  part  avoided  if  law  be  defined  as  "  the  command 
of  an  authorized  public  organ,  acting  within  the  sphere  of  its  compe- 
tence. What  organs  are  authorized,  and  what  is  the  sphere  of  their 
competence,  is  of  course  determined  by  the  organic  law  of  the  state ; 
and  this  law  is  the  direct  command  of  the  sovereign."  ^  The  only  diffi- 
culty left  by  this  solution  is  that  of  making  room  in  our  system  for  both 
a  sovereign  people  of  the  single  state  and  a  sovereign  people  of  the  Union. 

1229.  Summary.  —  Law,  then,  is  the  determinate  will  of 
the  state  concerning  the  civic  conduct  of  those  under  its 
authority.  Spoken  first  in  the  slow  and  general  voice  of  cus- 
tom, it  speaks  at  last  in  the  clear,  the  multifarious,  the  active 
tongues  of  legislation.  It  grows  with  the  growth  of  the  com- 
munity :  it  cannot  outrun  the  conscience  of  the  community  and 
be  real,  it  cannot  outlast  its  judgments  and  retain  its  force. 
It  mirrors  social  advance  :  if  it  anticipate  the  development  of 
the  imblic  thought,  it  must  wait  until  the  common  judgment 
and  conscience  grow  up  to  its  standards  before  it  can  have 
life  ;  if  it  lag  behind  the  common  judgment  and  conscience,  it 
must  become  obsolete,  and  will  come  to  be  more  honored  in 
the  breach  than  in  the  observance. 

1  This  definition  I  have  taken  the  Hberty  of  extracting  from  some 
very  valuable  notes  on  this  chapter  kindly  furnished  me  by  a  friend 
who  upon  this  subject  speaks  authoritatively. 


636  LAW:  ITS  NATUllE  AXD  DEVELOPMENT. 


Several  E,epresentatiye  Authorities. 

Robertson,  E.,  Article  'Law,'  Encyclopcedia  Britannica.    9th  ed. 
Savigny,  "  Beruf  unserer  Zeit  fiir  Gesetzgebung  und  Rechtswisseii- 
schaft." 

Ihering,  v.,    Geist  des  Romischen  Rechts." 

Holland,  T.  E.,  "Elements  of  Jurisprudence."   4th  ed.   Oxford,  1888. 
Austin,  John,    Lectures  on  Jurisprudence,  the  Philosophy  of  Positive 
Law."   2  vols. 

Maine,  Sir  H.  S.,  "Ancient  Law,"  and  "Early  History  of  Institutions," 
Lectures  XIL,  XIIL 

Heron,  D.  C,  "Introduction  to  the  History  of  Jurisprudence."  Lon- 
don, 1880. 

Bluntschli,  J.  C,  "  Allege meines  Staatsrecht."  6th  ed.  Stuttgart, 
1885. 

Holtzendorff,  F.  v.,  "  Encyklopadie  der  Rechtswissenschaft."  Leipzig, 
1882. 

Jellinek,  Georg,  "  Gesetz  und  Yerordnung,"  Freiburg  in  B.  1887. 


XV. 


THE  FUNCTIONS  OF  GOVEENMENT. 

1230.  What  are  the  Functions  of  Government  ?  —  The  ques- 
tion has  its  own  difficulties  and  complexities :  it  cannot  be 
answered  out  of  hand  and  in  the  lump,  as  the  physiologist 
might  answer  the  question,  What  are  the  functions  of  the 
heart  ?  In  its  nature  government  is  one,  but  in  its  life  it  is 
many  :  there  are  governments  and  governments.  When  asked, 
therefore,  What  are  the  functions  of  government  ?  we  must  ask 
in  return.  Of  what  government  ?  Different  states  have  differ- 
ent conceptions  of  their  duty,  and  so  undertake  different 
things.  They  have  had  their  own  peculiar  origins,  their  own 
characteristic  histories ;  circumstance  has  moulded  them ;  neces- 
sity, interest,  or  caprice  has  variously  guided  them.  Some 
have  lingered  near  those  primitive  institutions  which  all  once 
knew  and  upheld  together ;  others  have  quite  forgotten  that 
man  ever  had  a  political  childhood  and  are  now  old  in  complex 
practices  of  national  self-government. 

1231.  The  Nature  of  the  Question.  —  It  is  important  to 
notice  at  the  outset  a  single  general  point  touching  the  nature 
of  this  question.  It  is  in  one  aspect  obviously  a  simple 
question  of  fact;  and  yet  there  is  another  phase  of  it,  in  which 
it  becomes  as  evidently  a  question  of  opinion. 

The  distinction  is  important  because  over  and  over  again  the 
question  of  fact  has  been  confounded  with  that  very  widely 
different  question.  What  ought  the  functions  of  government  to 
be?    The  two  questions  should  be  kept  entirely  separate  in 


638  THE  FUNCTIONS  OF  GOVERNMENT. 


treatment.  Under  no  circumstances  may  we  instructively  or 
safely  begin  with  the  question  of  opinion  :  the  answer  to  the 
question  of  fact  is  the  indispensable  foundation  to  all  sound 
reasoning  concerning  government,  which  is  at  all  points  based 
upon  experience  rather  than  upon  theory.  The  facts  of  gov- 
ernment mirror  the  principles  of  government  in  operation. 
What  government  does  must  arise  from  what  government  is: 
and  what  government  is  must  determine  what  government 
ought  to  do.  The  present  chapter,  therefore,  will  confine  it- 
self to  the  question  of  fact :  the  question  of  opinion  will  be 
broached  and  partially  answered  in  Chapter  XVI. 

1232.  Classification.  —  It  will  contribute  to  clearness  of 
thought  to  observe  the  functions  of  government  in  two  groups, 
I.  The  Constituent  Functions,  II.  The  Ministrant.  Under  the 
Constituent  I  would  place  that  usual  category  of  governmental 
function,  the  protection  of  life,  liberty,  and  property,  together 
with  all  other  functions  that  are  necessary  to  the  civic  organ- 
ization of  society,  —  functions  which  are  not  optional  with 
governments,  even  in  the  eyes  of  strictest  laissez  faire,  —  which 
are  indeed  the  very  bonds  of  society.  Under  the  Ministrant  I 
would  range  those  other  functions  (such  as  education,  posts 
and  telegraphs,  and  the  care,  say,  of  forests)  which  are  under- 
taken, not  by  way  of  governing,  but  by  way  of  advancing  the 
general  interests  of  society,  —  functions  which  are  optional, 
being  necessary  only  according  to  standards  of  convenience  or 
expediency,  and  not  according  to  standards  of  existence  ;  func- 
tions which  assist  without  constituting  social  organization. 

Of  course  this  classification  is  based  primarily  upon  objective  and 
practical  distinctions  and  cannot  claim  philosophic  completeness. 
There  may  be  room  for  question,  too,  as  to  whether  some  of  the 
functions  which  I  class  as  Ministrant  might  not  quite  as  properly  have 
been  considered  Constituent;  but  I  must  here,  of  course,  simply  act 
upon  my  own  conclusions  without  rearguing  them,  acknowledging  by 
the  way  that  the  line  of  demarcation  is  not  always  perfectly  clear. 

"The  admitted  functions  of  government,'" said  Mr.  Mill,  "embrace 
a  much  wider  field  than  can  easily  be  included  within  the  ring-fence  of 


THE  FUNCTIONS  OF  GOVERNMENT.  639 


any  restrictive  definition,  and  it  is  hardly  possible  to  find  any  ground 
of  justification  common  to  them  all,  except  the  comprehensive  one  of 
general  expediency." 

1233.  I.  The  Constituent  Functions : 

(1)  The  keeping  of  order  and  providing  for  the  protection  of 

persons  and  property  from  violence  and  robbery. 

(2)  The  fixing  of  the  legal  relations  between  man  and  wife 

and  between  parents  and  children. 

(3)  The  regulation  of  the  holding,  transmission,  and  inter- 

change of  property,  and  the  determination  of  its  liabili- 
ties for  debt  or  for  crime. 

(4)  The  determination  of  contract  rights  between  individuals. 

(0)  The  definition  and  punishment  of  crime. 

(6)  The  administration  of  justice  in  civil  causes. 

(7)  The  determination  of  the  political  duties,  privileges,  and 

relations  of  citizens. 

(8)  Dealings  of  the  state  with  foreign  powers  :  the  preserva- 

tion of  the  state  from  external  danger  or  encroachment 
and  the  advancement  of  its  international  interests. 

These  will  all  be  recognized  as  functions  which  are  obnoxious 
not  even  to  the  principles  of  Mr.  Spencer,^  and  which  of  course 
persist  under  every  form  of  government. 

1234.  II.  The  Ministrant  Functions.  —  It  is  hardly  possible 
to  give  a  complete  list  of  those  functions  which  I  have  called 
Ministrant,  so  various  are  they  under  different  systems  of  gov- 
ernment; the  following  partial  list  will  suffice,  however,  for 
the  purposes  of  the  present  discussion  : 

(1)  The  regulation  of  trade  and  industry.    Under  this  head  I 

would  include  the  coinage  of  money  and  the  establish- 
ment of  standard  weights  and  measures,  laws  against 
forestalling,  engrossing,  the  licensing  of  trades,  etc.,  as 
well  as  the  great  matters  of  tariffs,  navigation  laws,  and 
the  like. 


As  set  forth  in  his  pamphlet,  Man  versus  the  State. 


640 


THE  FUNCTIONS  OF  GOVERNMENT. 


(2)  The  regulation  of  labor. 

(3)  The  maintenance  of  thoroughfares,  —  including  state  man- 

agement of  railways  and  that  great  group  of  undertak- 
ings which  we  embrace  within  the  comprehensive  terms 
'  Internal  Imj^rovements '  or  '  The  Development  of  the 
Country/ 

(4)  The  maintenance  of  postal  and  telegraph  systems,  which 

is  very  similar  in  principle  to  (  3) . 

(5)  The  manufacture  and  distribution  of  gas,  the  maintenance 

of  water-works,  etc. 

(6)  Sanitation,  including  the  regulation  of  trades  for  sanitary 

purposes, 

(7)  Education. 

(8)  Care  of  the  poor  and  incapable. 

(9)  Care  and  cultivation  of  forests  and  like  matters,  such  as 

the  stocking  of  rivers  with  fish. 

(10)  Sumptuary  laws,  such  as  'prohibition'  laws,  for  ex- 

ample. 

These  are  all  functions  which,  in  one  shape  or  another,  all 
governments  alike  have  undertaken.  Changed  conceptions  of 
the  nature  and  duty  of  the  state  have  arisen,  issuing  from 
changed  historical  conditions,  deeply  altered  historical  circum- 
stance, and  part  of  the  change  which  has  thus  affected  the  idea 
of  the  state  has  been  a  change  in  the  method  and  extent  of  the 
exercise  of  governmental  functions ;  but  changed  conceptions 
have  left  the  functions  of  government  in  kind  the  same. 
Diversities  of  conception  are  very  much  more  marked  than 
diversities  of  practice. 

1235.  The  following  may  be  mentioned  among  ministrant  functions 
not  included  under  any  of  the  foregoing  heads,  and  yet  undertaken  by 
more  than  one  modern  government :  the  maintenance  of  savings-banks, 
especially  for  small  sums  (e.g.,  the  English  postal  savings-bank),  the 
issuance  of  loans  to  farmers,  and  the  maintenance  of  agricultural  in- 
stitutes (as  in  France),  and  the  establishment  of  insurance  for  working- 
men  (as  in  Germany). 


THE  FUNCTIONS  OF  GOVERNMENT. 


641 


1236.  History  of  Governmental  Function :  Province  of  the 
Ancient  State. — Notable  contrasts  both  of  theory  and  of 
practice  separate  governments  of  the  ancient  omnipotent  from 
governments  of  the  modern  constitutional  type.  The  ancient 
state,  standing  very  near,  as  it  did,  in  its  thought,  to  that  time, 
still  more  remote,  when  the  State  was  the  Kin,  knew  nothing 
of  individual  rights  as  contrasted  with  the  rights  of  the  state. 
"  The  nations  of  Italy,"  says  Mommsen,  "  did  not  merge  into 
that  of  Rome  more  completely  than  the  single  Roman  bur- 
gess merged  in  the  Roman  community."  And  Greece  was 
not  a  whit  behind  Rome  in  the  absoluteness  with  which  she 
held  the  subordination  of  the  individual  to  the  state. 

1237.  This  thought  is  strikingly  visible  in  the  writings  of  Plato  and 
Aristotle,  not  only  in  what  they  say,  but  also,  and  even  more,  in  what 
they  do  not  say.  The  ideal  Republic  of  which  Plato  dreams  is  to  pre- 
scribe the  whole  life  of  its  citizens ;  but  there  is  no  suggestion  that  it 
is  to  be  set  up  under  cover  of  any  new  conception  as  to  wliat  the  state 
may  legitimately  do,  —  it  is  only  to  make  novel  experiments  in  legisla- 
tion under  the  old  conception.  And  Aristotle's  objection  to  the  Utopian 
projects  of  his  master  is  not  that  they  would  be  socialistic  (as  we  should 
say),  but  merely  that  they  would  be  unwise.  He  does  not  fear  that  in 
such  a  republic  the  public  power  would  prove  to  have  been  exalted  too 
high  ;  but,  speaking  to  the  policy  of  the  thing,  he  foresees  that  the 
citizens  would  be  poor  and  unhappy.  The  state  may  do  what  it  will, 
but  let  it  be  wise  in  what  it  does.  There  is  no  one  among  the  Greeks 
to  deny  that  it  is  the  duty  of  the  state  to  make  its  citizens  happy  and 
prosperous;  nay,  to  legislate  them  happy,  if  legislation  may  create  fair 
skies  and  kind  fortune ;  the  only  serious  quarrel  concerns  the  question. 
What  laws  are  to  be  tried  to  this  end  ? 

1238.  Roman  Conception  of  Private  Rights.  —  Roman 
principles,  though  equally  extreme,  were  in  some  respects  dif- 
ferently cast.  That  superior  capacity  for  the  development  of 
law,  which  made  the  Romans  singular  among  the  nations  of 
antiquity,  showed  itself  in  respect  of  the  functions  of  govern- 
ment in  a  more  distinct  division  between  public  and  private 
rights  than  obtained  in  the  polity  of  the  Greek  cities.    An  ex- 


642  THE  FUNCTIONS  OF  GOVERNMENT. 

amination  of  tlie  conception  of  the  state  held  in  Rome  reveals 
the  singular  framework  of  her  society.  The  Roman  family- 
did  not  suffer  that  complete  absorption  into  the  City  which  so 
early  overtook  the  Greek  family.  Private  rights  were  not  in- 
dividual rights,  but  family  rights :  and  family  rights  did  not 
so  much  curtail  as  supplement  the  powers  of  the  community. 
The  family  was  an  indestructible  organ  of  the  state.  The  father 
of  a  family,  or  the  head  of  a  gens,  was  in  a  sense  a  member  of 
the  official  hierarchy  of  the  City,  —  as  the  king,  or  his  counter- 
part the  consul,  was  a  greater  father :  there  was  no  distinction 
of  principle  between  the  power  of  king  or  consul  and  the 
power  of  a  father ;  it  was  a  mere  difference  of  sphere,  a  divis- 
ion of  functions. 

A  son  was,  for  instance,  in  some  things  exempt  from  the  authority 
of  the  City  only  because  he  was  in  those  things  still  subject,  because  his 
father  still  lived,  to  the  dominion  of  that  original  state,  the  family. 
There  was  not  in  Rome  that  separation  of  the  son  from  the  family  at 
majority  which  characterizes  the  Greek  polity,  as  it  now  characterizes 
our  own.  The  father  continued  to  be  a  ruler,  an  hereditary  state  officer, 
within  the  original  sphere  of  the  family  life,  the  large  sphere  of  indi- 
vidual privilege  and  property. 

1239.  This  essential  unity  of  state  and  family  furnishes  us 
with  the  theoretic  measure  of  state  functions  in  Rome.  The 
Roman  burgess  was  subordinated,  not  to  the  public  authority 
exactly,  but  rather  to  the  public  order,  to  the  conservative  in- 
tegrity of  the  community.  He  was  subject  to  a  law  which 
embodied  the  steady,  unbroken  habit  of  the  State-family.  He 
was  not  dominated,  but  merged. 

1240.  Powers  of  the  Roman  Senate.  — The  range  of  state  power 
in  ancient  times,  as  a  range  broken  only  by  limits  of  habit  and  conven- 
ience, is  well  illustrated  in  the  elastic  functions  of  the  Roman  Senate 
during  the  period  of  the  Republic.  With  an  unbroken  life  which  kept 
it  conscious  of  every  tradition  and  familiar  with  every  precedent;  with 
established  standards  of  tested  experience  and  cautious  expediency,  it 
was  able  to  direct  the  movements  of  the  compact  society  at  wlu)se  sum- 


THE  FUNCTIONS  OF  GOVERNMENT. 


643 


mit  it  sat,  as  the  brain  and  consciousness  direct  the  movements  of  the 
human  body ;  and  it  is  evident  from  the  freedom  of  its  discussions  and 
the  frequency  of  its  actions  upon  interests  of  every  kind,  whether  of 
public  or  of  private  import,  that  the  Roman  state,  as  typified  in  its 
Senate,  was  in  its  several  branches  of  family,  tribe,  and  City,  a  single 
undivided  whole,  and  that  its  prerogatives  were  limited  by  nothing  save 
religious  observance  and  fixed  habit.  Of  that  individual  liberty  which 
we  cherish  it  knew  nothing. 

1241.  Government  the  Embodiment  of  Society.  —  As  little 
was  there  in  Greek  politics  any  seed  of  the  thought  which 
would  limit  the  sphere  of  governmental  action  by  principles 
of  inalienable  individual  rights.  Both  in  Greek  and  in  Roman 
conception  government  was  as  old  as  society,  —  was  indeed 
nothing  less  than  the  express  image  and  embodiment  of  soci- 
ety. In  government  society  lived  and  moved  and  had  its 
being.  Society  and  government  were  one,  in  some  such  sense 
as  the  spirit  and  body  of  man  are  one :  it  was  through  govern- 
ment, as  through  mouth  and  eyes  and  limbs,  that  society  real- 
ized and  gave  effect  to  its  life.  Society's  prejudices,  habits, 
superstitions  did  indeed  command  the  actions  of  government ; 
but  only  because  society  and  government  were  one  and  the 
same,  not  because  they  were  distinct  and  the  one  subordinate 
to  the  other.  In  plain  terms,  then,  the  functions  of  govern- 
ment had  no  limits  of  principle,  but  only  certain  limits  of 
wont  and  convenience,  and  the  object  of  administration  was 
nothing  less  than  to  help  society  on  to  all  its  ends :  to  speed 
and  facilitate  all  social  undertakings.  So  far  as  full  citizens 
of  the  state  were  concerned,  Greek  and  Roman  alike  was  what 
we  should  call  a  socialist;  though  he  was  too  much  in  the 
world  of  affairs  and  had  too  keen  an  appreciation  of  experi- 
ence, too  keen  a  sense  of  the  sane  and  possible,  to  attempt  the 
Utopias  of  which  the  modern  socialist  dreams,  and  with  which 
the  ancient  citizen's  own  writers  sometimes  amused  him.  He 
bounded  his  politics  by  common  sense,  and  so  dispensed  with 
^  the  rights  of  man.' 


644 


THE  FUNCTIONS  OF  GOVERNMENT. 


1242.  Feudalism :  Functions  of  Government  Functions 
of  Proprietorship.  —  Individual  rights,  after  having  been  first 
heralded  in  the  religious  world  by  the  great  voice  of  Christi- 
anity, broke  into  the  ancient  political  world  in  the  person  of 
the  Teuton.  But  the  new  politics  which  the  invader  brought 
with  him  was  not  destined  to  establish  at  once  democratic 
equality :  that  was  a  work  reserved  for  the  transformations  of 
the  modern  world.  Meantime,  during  the  Middle  Ages,  gov- 
ernment, as  we  conceive  govermnent,  may  be  said  to  have  suf- 
fered eclipse.  In  the  Feudal  System  the  constituent  elements 
of  government  fell  away  from  each  other.  Society  was  drawn 
back  to  something  like  its  original  family  groups.  Conceptions 
of  government  narrowed  themselves  to  small  territorial  comiec- 
tions.  Men  became  sovereigns  in  their  own  right  by  virtue  of 
owning  land  in  their  own  right.  There  was  no  longer  any  con- 
ception of  nations  or  societies  as  wholes  :  union  there  was  none, 
but  only  interdependence.  Allegiance  bowed,  not  to  law  or  to 
fatherhood,  but  to  ownership.  The  functions  of  government 
under  such  a  system  were  simply  the  functions  of  proprietor- 
ship, of  command  and  obedience :  "  I  say  unto  one.  Go,  and  he 
goeth;  and  to  another,  Come,  and  he  cometh;  and  to  my  servant, 
Do  this,  and  he  doeth  it."  The  public  function  of  the  baron  was 
to  keep  peace  among  his  liegemen,  to  see  that  their  properties 
were  enjoyed  according  to  the  custom  of  the  manor  (if  the 
manor  had  been  suffered  to  acquire  custom  on  any  point),  and 
to  exact  fines  of  them  for  all  privileges,  whether  of  marrying, 
of  coming  of  age,  or  of  making  a  will.  The  baronial  con- 
science, bred  in  cruel,  hardening  times  was  the  only  standard 
of  justice ;  the  baronial  power  the  only  conclusive  test  of  pre- 
rogative. 

This  was  between  baron  and  vassal.  Between  baron  and 
baron  the  only  bond  was  a  nominal  common  allegiance  to  a 
distant  king,  who  was  himself  only  a  great  baron.  For  the 
rest  there  was  no  government,  but  only  diplomacy  and  war- 
fare.   Government  lived  where  it  could  and  as  it  could,  and 


THE  FUNCTIONS  OF  GOVERNMENT. 


645 


was  for  tlie  most  part  divided  out  piecemeal  to  a  thousand 
petty  holders.    Feuds  were  the  usual  processes  of  justice. 

1243.  The  Feudal  Monarchy.  —  The  monarchy  which  grew 
out  of  the  ruins  of  this  disintegi-ate  system  concentrated  au- 
thority without  much  changing  its  character.  The  old  idea, 
born  of  family  origins,  that  government  was  but  the  active 
authority  of  society,  the  magistrate  but  society's  organ,  bound 
by  society's  immemorial  laws,  had  passed  utterly  away,  and 
government  had  become  the  personal  possession  of  one  man. 
The  ruler  did  not  any  longer  belong  to  the  state ;  the  state  be- 
longed to  him :  he  was  himself  the  state,  as  the  rich  man  may 
be  said  to  be  his  possessions.  The  Greek  or  Roman  official 
was  wielded  by  the  community.  Not  so  the  king  who  had 
swept  together  into  his  own  lap  the  powers  once  broadcast  in 
the  feudal  system :  he  wielded  the  community.  Government 
breathed  with  his  breath,  and  it  was  its  function  to  please  him. 
The  state  had  become,  by  the  processes  of  the  feudal  develop- 
ment, his  private  estate. 

1244.  Modern  De-socialization  of  the  State.  —  The  reac- 
tion from  such  conceptions,  slow  and  for  the  most  part  orderly 
in  England,  sudden  and  violent,  because  long  forcibly  delayed, 
on  the  Continent,  was  of  course  natural,  and  indeed  inevitable. 
When  it  came  it  was  radical ;  but  it  did  not  swing  the  political 
world  back  to  its  old-time  ideas ;  it  turned  it  aside  rather  to 
new.  It  became  the  object  of  the  revolutionist  and  the  demo- 
crat of  the  new  order  of  things  to  live  his  own  life  :  the 
ancient  man  had  had  no  thought  but  to  live  loyally  the  life  of 
society.  The  antique  citizen's  virtues  were  not  individual  in 
their  point  of  view,  but  social ;  whereas  our  virtues  are  almost 
entirely  individual  in  their  motive,  social  only  in  some  of  their 
results. 

In  brief,  the  modern  State  has  been  largely  de-socialized. 
The  modern  idea  is  this  :  the  state  no  longer  absorbs  the  indi- 
vidual ;  it  only  serves  him :  the  state,  a ;  it  appears  in  its 
organ,  the  government,  is  the  representative  of  the  individual, 


646 


THE  FUNCTIONS  OF  GOVERNMENT. 


and  not  his  representative  even  except  within  the  definite 
commission  of  constitutions  j  while  for  the  rest  each  man 
makes  his  own  social  relations.  'The  individual  for  the 
State'  has  been  reversed  and  made  to  read,  'The  State  for 
the  individual. ' 

1245.  More  Changes  of  Conception  than  of  Practice.  — 
Such  are  the  divergencies  of  conception  separating  modern  from 
ancient  politics,  divergencies  at  once  deep  and  far-reaching. 
How  far  have  such  changes  of  thought  been  accompanied  by 
changes  of  function  ?  By  no  means  so  far  as  might  be  ex- 
pected. Apparently  the  new  ideas  given  prevalence  in  politics 
from  time  to  time  have  not  been  able  to  translate  themselves 
into  altered  functions  but  only  into  somewhat  curtailed  func- 
tions, breeding  rather  a  difference  of  degree  than  a  difference 
of  kind.  Even  under  the  most  liberal  of  our  modern  constitu- 
tions we  still  meet  government  in  every  field  of  social  endeavor. 
Our  modern  life  is  so  infinitely  wide  and  complex,  indeed,  that 
we  may  go  great  distances  in  any  field  of  enterprise  without 
receiving  either  direct  aid  or  direct  check  from  government ; 
but  that  is  only  because  every  field  of  enterprise  is  vastly  big 
nowadays,  not  because  government  is  not  somewhere  in  it :  and 
we  know  that  the  tendency  is  for  governments  to  make  them- 
selves everywhere  more  and  more  conspicuously  present.  We 
are  conscious  that  we  are  by  no  means  in  the  same  case  with 
the  Greek  or  Eoman  :  the  state  is  ours,  not  we  the  state's. 
But  we  know  at  the  same  time  that  the  tasks  of  the  state  have 
not  been  much  diminished.  Perhaps  we  may  say  that  the 
matter  stands  thus :  what  is  changed  is  not  the  activities  of 
government  but  only  the  morals,  the  conscience  of  government. 
Government  may  still  be  doing  substantially  the  same  things 
as  of  old  ;  but  an  altered  conception  of  its  responsibility  deeply 
modifies  the  icay  in  ichich  it  does  them.  Social  convenience  and 
advancement  are  still  its  ultimate  standard  of  conduct,  just  as 
if  it  were  still  itself  the  omnipotent  impersonation  of  society, 
the  master  of  the  individual ;  but  it  has  adopted  new  ideas  as 


THE  FUNCTIONS  OF  g6vERNMENT.  647 


to  what  constitutes  social  convenience  and  advancement.  Its 
aim  is  to  aid  the  individual  to  the  fullest  and  best  possible 
realization  of  his  individuality,  instead  of  merely  to  the  full 
realization  of  his  sociality.  Its  plan  is  to  create  the  best  and 
fairest  opportunities  for  the  individual ;  and  it  has  discovered 
that  the  way  to  do  this  is  by  no  means  itself  to  undertake  the 
administration  of  the  individual  by  old-time  futile  methods  of 
guardianship. 

1246.  Functions  of  Government  much  the  Same  now  as 
always.  —  This  is  indeed  a  great  and  profound  change ;  but  it 
is  none  the  less  important  to  emphasize  the  fact  that  the 
functions  of  government  are  still,  when  catalogued,  found  to 
be  much  the  same  both  in  number  and  magnitude  that  they 
always  were.  Government  does  not  stop  with  the  protection 
of  life,  liberty,  and  property,  as  some  have  sup]30sed ;  it  goes 
on  to  serve  every  convenience  of  society.  Its  sphere  is  limited 
only  by  its  own  wisdom,  alike  where  republican  and  where 
absolutist  principles  prevail. 

1247.  The  State's  Relation  to  Property. — A  very  brief 
examination  of  the  facts  suffices  to  confirm  this  view.  Take, 
for  example,  the  state's  relation  to  property,  its  performance 
of  one  of  the  chief  of  those  functions  which  I  have  called 
Constituent.  It  is  in  connection  with  this  function  that  one 
of  the  most  decided  contrasts  exists  between  ancient  and 
modern  political  practice ;  and  yet  we  shall  not  find  ourselves 
embarrassed  to  recognize  as  natural  the  practice  of  most  ancient 
states  touching  the  right  of  private  property.  Their  theory  was 
extreme,  but,  outside  of  Sparta,  their  practice  was  moderate. 

1248.  In  Sparta.  —  Consistent,  logical  Sparta  may  serve  as 
the  point  of  departure  for  our  observation :  she  is  the  standing 
classical  type  of  exaggerated  state  functions  and  furnishes  the 
most  extreme  example  of  the  antique  conception  of  the  rela- 
tions of  the  state  to  property.  In  the  early  periods  of  her 
history  at  least,  besides  being  censor,  pedagogue,  drill  sergeant, 
and  housekeeper  to  her  citizens,  she  was  also  universal  land- 


648 


THE  FUNCTIONS  OF  GOVERNMENT. 


lord.  There  was  a  distinct  reminiscence  in  lier  practice  of  the 
time  when  the  state  was  the  family,  and  as  such  the  sole  owner 
of  property.  She  was  regarded  as  the  original  proprietor  of 
all  the  land  in  Laconia,  and  individual  tenure  was  looked  upon 
as  rather  of  the  nature  of  a  usufruct  held  of  the  state  and  at 
the  state's  pleasure  than  as  resting  upon  any  complete  or  inde- 
feasible private  title. 

1249.  Peculiar  Situation  of  the  Spartans.  —  There  were  in  Sparta 
special  reasons  for  the  persistence  of  such  a  system.  The  Spartans  had 
come  into  Laconia  as  conquerors,  and  the  land  had  first  of  all  been 
tribal  booty.  It  had  been  booty  of  which  the  Spartan  host  as  a  whole, 
as  a  State,  had  had  the  dividing,  and  it  had  been  the  purpose  of  the 
early  arrangement  to  make  the  division  of  the  land  among  the  Spartan 
families  as  equal  as  possible.  Xor  did  the  state  resign  the  right  of  dis- 
position in  making  this  first  distribution.  It  remained  its  primary  care 
to  keep  its  citizens,  the  favored  SpartiatEe,  upon  an  equal  footing  of 
fortune  to  the  end  that  they  might  remain  rich  in  leisure,  and  so  be  the 
better  able  to  live  entirely  for  the  service  of  the  state,  which  was  honor- 
able, to  the  avoidance  of  that  pursuit  of  wealth  which  was  dishonorable. 
The  state,  accordingly,  undertook  to  administer  the  wealth  of  the 
country  for  the  benefit  of  its  citizens.  When  grave  inequalities  mani- 
fested themselves  in  the  distribution  of  estates  it  did  not  hesitate  to 
resume  its  proprietary  rights  and  effect  a  reapportionment :  no  one 
dreaming,  the  while,  of  calling  its  action  confiscation.  It  took  various 
means  for  accomplishing  its  ends.  It  compelled  rich  heiresses  to  marry 
men  without  patrimony  ;  and  it  grafted  the  poor  citizen  upon  a  good 
estate  by  means  of  prescribed  adoption.  No  landed  estate  could  be 
alienated  either  by  sale  or  testament  from  the  family  to  which  the  state 
had  assigned  it  unless  express  legislative  leave  were  given.  In  brief,  in 
respect  of  his  property  the  citizen  was  both  ward  and  tenant  of  the  state. 

1250.  Decay  of  the  System.  —  As  the  Spartan  state  de- 
cayed this  whole  system  was  sapped.  Estates  became  grossly 
unequal,  as  did  also  political  privileges  even  among  the  favored 
Spartiatse.  But  these  changes  were  due  to  the  decadence  of 
Spartan  power  and  to  the  degeneration  of  her  political  fibre  in 
days  of  waning  fortune,  not  to  any  conscious  or  deliberate  sur- 
render by  the  state  of  her  prerogatives  as  owner,  guardian, 


THE  FUNCTIONS  OF  GOVERNMENT. 


649 


and  trustee.  She  had  grown  old  and  lax  simply  ;  she  had  not 
changed  her  mind. 

1251.  In  Athens.  —  When  we  turn  to  Athens  we  experience 
a  marked  change  in  the  political  atmosphere,  though  the  Athe- 
nians hold  much  the  same  abstract  conception  of  the  state. 
Here  men  breathe  more  freely  and  enjoy  the  fruits  of  their 
labor,  where  labor  is  without  reproach,  with  less  restraint. 
Even  in  Athens  there  remain  distinct  traces,  however,  of  the 
family  duties  of  the  state.  She  too,  like  Sparta,  felt  bound  to 
dispose  properly  of  eligible  heiresses.  She  did  not  hesitate  to 
punish  with  heavy  forfeiture  of  right  (atimia)  those  who 
squandered  their  property  in  dissolute  living.  There  was  as 
little  limit  in  Athens  as  in  Sparta  to  the  theoretical  preroga- 
tives of  the  public  authority.  The  freedom  of  the  citizen  was 
a  freedom  of  indulgence  rather  than  of  right :  he  was  free  be- 
cause the  state  refrained,  as  a  privileged  child,  not  as  a  sov- 
ereign under  Eousseau's  Law  of  Nature. 

1252.  In  Rome.  —  When  we  shift  our  view  to  republican 
Rome  we  do  not  find  a  simple  city  omnipotence  like  that  of 
Greece,  in  which  all  private  rights  are  sunk.  The  primal  con- 
stituents of  the  city  yet  abide  in  shapes  something  like  their 
original.  Roman  society  consists  of  a  series  of  interdependent 
links:  the  family,  the  gens,  the  city.  The  aggregate,  not  the 
fusion,  of  these  makes  up  what  we  should  call  the  state.  But 
the  state,  so  made  up,  was  omnipotent,  through  one  or  other 
of  its  organs,  over  the  individual.  Property  was  not  private 
in  the  sense  of  being  individual ;  it  vested  in  the  family,  which 
was,  in  this  as  in  other  respects,  an  organ  of  the  state.  Prop- 
erty was  not  conceived  of  as  state  property,  because  it  had 
remained  the  undivided  property  of  the  family.  The  father, 
as  a  ruler  in  the  immemorial  hierarchy  of  the  government,  was 
all-powerful  trustee  of  the  family  estates.  Individual  owner- 
ship there  was  none. 

1253.  Under  Modern  Governments. — We  with  some  jus- 
tice felicitate  ourselves  that  to  this  omnipotence  of  the  ancient 


650  THE  FUNCTIONS  OF  GOVERNMENT. 


state  in  its  relations  to  property  the  practice  of  our  own  gov- 
ernments offers  the  most  pronounced  contrasts.  But  the  point 
of  greatest  interest  for  us  in  the  present  connection  is  this, 
that  these  contrasts  are  contrasts  of  policy,  not  of  power.  To 
what  lengths  it  will  go  in  regulating  property  rights  is  for 
each  government  a  question  of  principle,  which  it  must  put  to 
its  own  conscience,  and  which,  if  it  be  wise,  it  will  debate  in 
the  light  of  political  history :  but  every  government  must 
regulate  property  in  one  way  or  another.  If  the  ancient  state 
was  regarded  as  the  ultimate  owner,  the  modern  state  is  re- 
garded as  the  ultimate  heir  of  all  estates.  Failing  other  claim- 
ants, property  escheats  to  the  state.  If  the  modern  state  does 
not  assume,  like  the  ancient,  to  administer  their  property  upon 
occasion  for  competent  adults,  it  does  administer  their  prop- 
erty upon  occasion  for  lunatics  and  minors.  The  ancient  state 
controlled  slaves  and  slavery ;  the  modern  state  has  been  quite 
as  absolute  :  it  has  abolished  slaves  and  slavery.  The  modern 
state,  no  less  than  the  ancient,  sets  rules  and  limitations  to 
inheritance  and  bequest.  Most  of  the  more  extreme  and  hurt- 
ful interferences  with  rights  of  private  ownership  government 
has  abandoned,  one  may  suspect,  rather  because  of  difficulties 
of  administration  than  because  of  difficulties  of  conscience. 
It  is  of  the  nature  of  the  state  to  regulate  property  rights ; 
it  is  of  the  policy  of  the  state  to  regulate  them  more  or  less. 
Administrators  must  regard  this  as  one  of  the  Constituent 
functions  of  political  society. 

1254.  The  State  and  Political  Rights.  —  Similar  conclu- 
sions may  be  drawn  from  a  consideration  of  the  contrasts  which 
exist  in  the  field  of  that  other  Constituent  function  which  con- 
cerns the  determination  of  political  rights,  —  the  contrasts 
between  the  status  of  the  citizen  in  the  ancient  state  and  the 
status  of  the  citizen  in  the  modern  state.  Here  also  the  contrast, 
as  between  state  and  state,  is  not  one  of  power,  but  one  of 
principle  and  habit  rather.  Modern  states  have  often  limited 
as  narrowly  as  did  the  ancient  the  enjoyment  of  those  political 


THE  FUNCTIONS  OF  GOVERNMENT. 


651 


privileges  which  we  group  under  the  word  Franchise.  They 
too,  as  well  as  the  ancient  states,  have  admitted  slavery  into 
their  systems ;  they  too  have  commanded  their  subjects  with- 
out moderation  and  fleeced  them  without  compunction.  But 
for  all  they  have  been  so  omnipotent,  and  when  they  chose  so 
tyrannical,  they  have  seldom  insisted  upon  so  complete  and 
unreserved  a  service  of  the  state  by  the  citizen  as  was  habitual 
to  the  political  practice  of  both  the  Greek  and  the  Roman 
worlds.  The  Greek  and  the  Roman  belonged  each  to  his  state 
in  a  quite  absolute  sense.  He  was  his  own  in  nothing  as 
against  the  claims  of  his  city  upon  him:  he  freely  acknowl- 
edged all  his  privileges  to  be  but  concessions  from  his  mother, 
the  commonwealth.  Those  privileges  accrued  to  him  through 
law,  as  do  ours ;  but  law  was  to  him  simply  the  will  of  the 
organic  community,  never,  as  we  know  it  in  our  constitutions, 
a  restraint  upon  the  will  of  the  organic  community.  He  knew 
no  principles  of  liberty  save  only  those  which  custom  had  built 
up  :  which  inliered,  not  in  the  nature  of  things,  not  in  abstract 
individuality,  but  in  the  history  of  affairs,  in  concrete  practice. 
His  principles  were  all  precedents.  Nevertheless,  however 
radically  different  its  doctrines,  the  ancient  state  was  not  a 
whit  more  completely  master  touching  laws  of  citizenship  than 
is  the  state  of  to-day. 

1255.  As  regards  the  State's  Ministrant  Functions.  —  Of 
the  Ministrant,  no  less  than  of  these  Constituent  functions 
which  I  have  taken  merely  as  examples  of  their  kind,  the  same 
statement  may  be  made,  that  practically  the  state  has  been 
relieved  of  very  little  duty  by  alterations  of  political  theory. 
In  this  field  of  the  Ministrant  functions  one  would  expect  the 
state  to  be  less  active  now  than  formerly :  it  is  natural  enough 
that  in  the  field  of  the  Constituent  functions  the  state  should 
serve  society  now  as  always.  But  there  is  in  fact  no  such  dif- 
ference :  government  does  now  whatever  experience  permits  or  the 
times  demand;  and  though  it  does  not  do  exactly  the  same 
things  it  still  does  substantially  the  same  kind  of  things  that 


052 


THE  FUNCTIONS  OF  GOVERNMENT. 


the  ancient  state  did.  It  will  conduce  to  clearness  if  I  set 
for,:li  my  illustrations  of  this  in  the  order  of  the  list  of  Minis- 
trant  functions  which  I  have  given  (sec.  1234). 

1256.  The  State  in  Relation  to  Trade.  — (1)  All  nations 
have  habitually  regulated  trade  and  commerce.  In  the  most 
remote  periods  of  which  history  has  retained  any  recollection 
the  regulation  of  trade  and  commerce  was  necessary  to  the 
existence  of  government.  The  only  way  in  which  communities 
which  were  then  seeking  to  build  up  a  dominant  power  could 
preserve  an  independent  existence  and  work  out  an  individual 
development  was  to  draw  apart  to  an  absolutely  separate  life. 
Commerce  meant  contact ;  contact  meant  contamination :  the 
only  way  in  which  to  develop  character  and  achieve  cohesion 
was  to  avoid  intercourse.  In  the  classical  states  this  stage  is 
of  course  passed  and  trade  and  commerce  are  regulated  for 
much  the  same  reasons  that  induce  modern  states  to  regulate 
them,  in  order,  that  is,  to  secure  commercial  advantage  as 
against  competitors  or  in  order  to  serve  the  fiscal  needs  of  the 
state.  Athens  and  Sparta  and  Kome,  too,  regulated  the  corn 
trade  for  the  purpose  of  securing  for  their  citizens  full  store  of 
food.  In  the  Middle  Ages  the  feuds  and  highway  brigandage 
of  petty  lords  loaded  commerce  with  fetters  of  the  most  haras- 
sing sort,  except  where  the  free  cities  could  by  militant  com- 
bination keep  open  to  it  an  unhindered  passage  to  and  fro 
between  the  great  marts  of  North  and  South.  As  the  mediae- 
val states  emerge  into  modern  times  we  find  trade  and  com- 
merce handled  by  statesmen  as  freely  as  ever,  but  according 
to  the  reasoned  policy  of  the  mercantilist  thinkers ;  and  in  our 
own  days  according  to  still  other  conceptions  of  national  advan- 
tage. 

1257.  The  State  in  Relation  to  Labor.  —  (2)  Labor,  too, 
has  always  been  regulated  by  the  state.  By  Greek  and  Koman 
the  labor  of  the  handicrafts  and  of  agriculture,  all  manual 
toil  indeed,  was  for  the  most  part  given  to  slaves  to  do  ;  and 
of  course  laAv  regulated  the  slave.    In  the  Middle  Ages  the 


THE  FUNCTIONS  OF  GOVERNMENT. 


653 


labor  which  was  uot  agricultural  and  held  in  bondage  to  feu- 
dal masters  was  in  the  cities,  where  it  was  rigidly  ordered  by 
the  complex  rules  of  the  guild  system,  as  was  trade  also  and 
almost  all  other  like  forms  of  making  a  livelihood.  Where,  as 
in  England,  labor  in  part  escaped  from  the  hard  service  of 
the  feudal  tenure  the  state  stepped  in  with  its  persistent 
"  statutes  of  laborers  "  and  sought  to  tie  the  workman  to  one 
habitation  and  to  one  rate  of  wages.  '  The  rustic  must  stay 
where  he  is  and  must  receive  only  so  much  pay,'  was  its 
command.  Apparently,  however,  all  past  regulation  of  labor 
was  but  timid  and  elementary  as  compared  with  the  labor 
legislation  about  to  be  tried  by  the  governments  of  our  own 
day.  The  birth  and  development  of  the  modern  industrial 
system  has  changed  every  aspect  of  the  matter ;  and  this  fact 
it  is  which  reveals  the  true  character  of  the  part  which  the 
state  plays  in  the  case.  The  rule  would  seem  to  be  that  in 
proportion  as  the  world's  industries  grow  must  the  state  ad- 
vance in  its  efforts  to  assist  the  industrious  to  advantageous 
relations  with  each  other.  The  tendency  to  regulate  labor 
rigorously  and  minutely  is  as  strong  in  England,  where  the 
state  is  considered  the  agent  of  the  citizen,  as  it  was  in  Athens, 
where  the  citizen  was  deemed  the  child  and  tool  of  the  state, 
and  where  the  workman  was  a  slave. 

1258.  (3)  Regulation  of  Corporations.  —  The  regulation  of 
corporations  is  but  one  side  of  the  modern  regulation  of  the  in- 
dustrial system,  and  is  a  function  added  to  the  antique  list  of 
governmental  tasks. 

1259.  (4)  The  State  and  Public  Works.  —  The  maintenance 
of  thoroughfares  may  be  said  to  have  begun  with  permanent 
empire,  that  is  to  say,  for  Europe,  with  the  Romans.  For  the 
Romans,  indeed,  it  was  first  a  matter  of  moving  armies,  only 
secondarily  a  means  of  serving  commerce ;  whereas  with  us 
the  highway  is  above  all  things  else  an  artery  of  trade,  and 
armies  use  it  only  when  commerce  stands  still  at  the  sound  of 
drum  and  trumpet.    The  building  of  roads  may  therefore  be 


654  THE  FUNCTIONS  OF  GOVERNMENT. 


said  to  have  begun  by  being  a  Constituent  function  and  to  have 
ended  by  becoming  a  Ministrant  function  of  government.  But 
the  same  is  not  true  of  other  public  works,  of  the  Eoman  aque- 
ducts and  theatres  and  baths,  and  of  modern  internal  improve- 
ments. They,  as  much  as  the  Eoman  tax  on  old  bachelors,  are 
parts,  not  of  a  scheme  of  governing,  but  of  plans  for  the  ad- 
vancement of  other  social  aims,  —  for  the  administration  of 
society.  Because  in  her  conception  the  community  as  a  whole 
was  the  only  individual,  Eome  thrust  out  as  of  course  her 
magnificent  roads  to  every  quarter  of  her  vast  territory,  con- 
sidered no  distances  too  great  to  be  traversed  by  her  towering 
aqueducts,  deemed  it  her  duty  to  clear  river  courses  and  facili- 
tate by  every  means  both  her  commerce  and  her  arms.  And 
the  modern  state,  though  holding  a  deeply  modified  conception 
of  the  relations  of  government  to  society,  still  follows  no  very 
different  practice.  If  in  most  instances  our  great  iron  high- 
ways are  left  to  private  management,  it  is  oftener  for  reasons 
of  convenience  than  for  reasons  of  conscience. 

1260.  (5)  Administration  of  the  Conveniences  of  Society. 
—  Similar  considerations  of  course  apply  in  the  case  of  that 
modern  instrumentality,  the  public  letter-post,  in  the  case  of 
the  still  more  modern  manufacture  of  gas,  and  in  the  case  of  the 
most  modern  telegraph.  The  modern  no  less  than  the  ancient 
government  unhesitatingly  takes  a  hand  in  administering  the 
conveniences  of  society. 

1261.  (6)  Sanitation.  —  Modern  governments,  like  the  gov- 
ernment of  Rome,  maintain  sanitation  by  means  of  police  in- 
spection of  baths,  taverns,  and  houses  of  ill  fame,  as  well  as 
by  drainage  ;  and  to  these  they  add  hospital  relief,  water  sup- 
ply, quarantine,  and  a  score  of  other  means. 

1262.  (7)  Public  Education.  —  Our  modern  systems  of  pub- 
lic education  are  more  thorough  than  the  ancient,  notwithstand- 
ing the  fact  that  we  regard  the  individual  as  something  other 
than  a  mere  servant  of  the  state,  and  educate  him  first  of  all 
for  himself. 


THE  FUNCTIONS  OF  GOVERNIVIENT. 


655 


1263.  (8)  Sumptuary  Laws.  —  In  sumptuary  laws  ancient 
states  of  course  far  outran  modern  practice.  Modern  states 
have  of  course  foregone  most  attempts  to  make  citizens  vir- 
tuous or  frugal  by  law.  But  even  we  have  our  prohibition 
enactments  ;  and  we  have  had  our  fines  for  swearing. 

1264.  Summary.  —  Apparently  it  is  safe  to  say  with  regard 
to  the  functions  of  government  taken  as  a  whole  that,  even  as 
between  ancient  and  modern  states,  uniformities  of  practice 
far  outnumber  diversities  of  practice.  One  may  justly  con- 
clude, not  indeed  that  the  restraints  which  modern  states  put 
upon  themselves  are  of  little  consequence,  or  that  altered 
political  conceptions  are  not  of  the  greatest  moment  in  deter- 
mining important  questions  of  government  and  even  the  whole 
advance  of  the  race  ;  but  that  it  is  rather  by  gaining  practical 
wisdom,  rather  by  long  processes  of  historical  experience,  that 
states  modify  their  practices  ;  new  theories  are  subsequent  to 
new  experiences. 


XVI. 


THE  OBJECTS  OF  GOVERNMENT, 

1265.  Character  of  the  Subject. — Political  interest  and 

controversy  centre  nowhere  more  acutely  than  in  the  question, 
What  are  the  proper  objects  of  government  ?  This  is  one  of 
those  difficult  questions  upon  which  it  is  possible  for  many 
sharply  opposed  views  to  be  held  apparently  with  almost  equal 
weight  of  reason.  Its  central  difficulty  is  this,  that  it  is  a 
question  which  can  be  answered,  if  answered  at  all,  only  by 
the  aid  of  a  broad  and  careful  wisdom  whose  conclusions  are 
based  upon  the  widest  possible  inductions  from  the  facts  of 
political  experience  in  all  its  phases.  Such  wisdom  is  of 
coui'se  quite  beyond  the  capacity  of  most  thinkers  and  actors 
in  the  field  of  politics  ;  and  the  consequence  has  been  that  this 
question,  perhaps  more  than  any  other  in  the  whole  scope  of 
political  science,  has  provoked  great  wars  of  doctrine. 

1266.  The  Extreme  Views  Held. —What  part  shall  gov- 
ernment play  in  the  affairs  of  society  ?  —  that  is  the  question 
which  has  been  the  gauge  of  controversial  battle.  Stated  in 
another  way,  it  is  the  very  question  which  I  postponed  when 
discussing  the  functions  of  government  (sec.  1231),  ^Wliat^^ 
namely,  'ought  the  functions  of  government  to  be?^  On  the  one 
hand  there  are  extremists  who  cry  constantly  to  government, 
'Hands  off,'  'laissez  faire/  'laissez  passer^ !  who  look  upon  every 
act  of  government  which  is  not  merely  an  act  of  police  with 
jealousy,  who  regard  government  as  necessary,but  as  a  necessary 
evil,  and  who  would  have  government  hold  back  from  every- 


THE  OBJECTS  OF  GOVERNMENT. 


657 


thing  which  could  by  any  possibility  be  accomplished  by  indi- 
vidual initiative  and  endeavor.  On  the  other  hand,  there  are 
those  who,  with  equal  extremeness  of  view  in  the  opposite 
direction,  would  have  society  lean  fondly  upon  government  for 
guidance  and  assistance  in  every  affair  of  life,  who,  captivated 
by  some  glimpse  of  public  power  and  beneficence  caught  in  the 
pages  of  ancient  or  mediaeval  historian  or  by  some  dream  of  co- 
operative endeavor  cunningly  imagined  by  the  great  fathers  of 
Socialism,  believe  that  the  state  can  be  made  a  wise  foster- 
mother  to  every  member  of  the  family  politic.  Betw^een  these 
two  extremes,  again,  there  are  all  grades,  all  shades  and  colors, 
all  degrees  of  enmity  or  of  partiality  to  state  action. 

1267.  Historical  Foundation  for  Opposite  Views.  —  Enmity 
to  exaggerated  state  action,  even  a  keen  desire  to  keep  that 
action  down  to  its  lowest  possible  terms,  is  easily  furnished 
with  impressive  justification.  It  must  unreservedly  be  admit- 
ted that  history  abounds  with  warnings  of  no  uncertain  sound 
against  indulging  the  state  with  a  too  great  liberty  of  inter- 
ference wdth  the  life  and  work  of  its  citizens.  Much  as  there 
is  that  is  attractive  in  the  political  life  of  the  city  states  of 
Greece  and  Eome,  in  which  the  public  power  was  suffered  to 
be  omnipotent,  —  their  splendid  public  spirit,  their  incompara- 
ble organic  wholeness,  their  fine  play  of  rival  talents,  serving 
both  the  common  thought  and  the  common  action,  their  variety, 
their  conception  of  public  virtue,  there  is  also  much  to  blame,  — 
their  too  wanton  invasion  of  that  privacy  of  the  individual  life 
in  which  alone  family  virtue  can  dwell  secure,  their  callous 
tyranny  over  minorities  in  matters  which  might  have  been  left 
to  individual  choice,  their  sacrifice  of  personal  independence 
for  the  sake  of  public  solidarity,  their  hasty  average  judg- 
ments, their  too  confident  trust  in  the  public  voice.  They,  it 
is  true,  could  not  have  had  the  individual  liberty  which  we 
cherish  without  breaking  violently  with  their  own  history,  with 
the  necessary  order  of  their  development ;  but  neither  can  we, 
on  the  other  hand,  imitate  them  without  an  equally  violent 


658 


THE  OBJECTS  OF  GOVERNMENT. 


departure  from  our  own  normal  development  and  a  reversion 
to  the  now  too  primitive  methods  of  their  pocket  republics. 

1268.  Unquestionable  as  it  is,  too,  that  mediaeval  history 
affords  many  seductive  examples  of  an  absence  of  grinding, 
heartless  competition  and  a  strength  of  mutual  interdependence, 
confidence,  and  helpfulness  between  class  and  class  such  as 
the  modern  economist  may  be  pardoned  for  wishing  to  see  re- 
vived ;  and  true  though  it  be  that  the  history  of  Prussia  under 
some  of  the  greater  Hohenzollern  gives  at  least  colorable  justi- 
fication to  the  opinion  that  state  interference  may  under  many 
circumstances  be  full  of  benefit  for  the  industrial  upbuilding  of 
a  state,  it  must,  on  the  other  hand,  be  remembered  that  neither 
the  feudal  system,  nor  the  mediaeval  guild  system,  nor  the 
paternalism  of  Frederic  the  Great  can  be  rehabilitated  now 
that  the  nineteenth  century  has  wrought  its  revolutions  in 
industry,  in  church,  and  in  state  ;  and  that,  even  if  these  great 
systems  of  the  past  could  be  revived,  we  would  be  sorely  puz- 
zled to  reinstate  their  blessings  without  restoring  at  the  same 
time  their  acknowledged  evils.  No  student  of  history  can 
wisely  censure  those  who  protest  against  state  paternalism. 

1269.  The  State  a  Beneficent  and  Indispensable  Organ  of 
Society.  —  It  by  no  means  follows,  however,  that  because  the 
state  may  unwisely  interfere  in  the  life  of  the  individual,  it 
must  be  pronounced  in  itself  and  by  nature  a  necessary  evil. 
It  is  no  more  an  evil  than  is  society  itself.  It  is  the  organic 
body  of  society :  without  it  society  would  be  hardly  more  than 
a  mere  abstraction.  If  the  name  had  not  been  restricted  to  a 
single,  narrow,  extreme,  and  radically  mistaken  class  of  thinkers, 
we  ought  all  to  regard  ourselves  and  to  act  as  socialists,  believers 
in  the  wholesomeness  and  beneficence  of  the  body  politic.  If 
the  history  of  society  proves  anything,  it  proves  the  absolute 
naturalness  of  government,  its  rootage  in  the  nature  of  man, 
its  origin  in  kinship,  and  its  identification  with  all  that  makes 
man  superior  to  the  brute  creation.  Individually  man  is  but 
poorly  equipped  to  dominate  other  animals  :  his  lordship  comes 


THE  OBJECTS  OF  GOVERNMENT. 


659 


by  combination,  his  strength  is  concerted  strength,  his  sover- 
eignty is  the  sovereignty  of  union.  Outside  of  society  man's 
mind  can  avail  him  little  as  an  instrument  of  supremacy,  and 
government  is  the  visible  form  of  society :  if  society  itself  be 
not  an  evil,  neither  surely  is  government  an  evil,  for  govern- 
ment is  the  indispensable  organ  of  society. 

1270.  Every  means,  therefore,  by  which  society  may  be  per- 
fected through  the  instrumentality  of  government,  every  means 
by  which  individual  rights  can  be  fitly  adjusted  and  harmonized 
with  public  duties,  by  which  individual  self-development  may 
be  made  at  once  to  serve  and  to  supplement  social  develop- 
ment, ought  certainly  to  be  diligently  sought,  and,  when  found, 
sedulously  fostered  by  every  friend  of  society.  Such  is  the 
socialism  to  which  every  true  lover  of  his  kind  ought  to  adhere 
with  the  full  grip  of  every  noble  affection  that  is  in  him. 

1271.  Socialism  and  the  Modern  Industrial  Organization. 
—  It  is  possible  indeed,  to  understand,  and  even  in  a  measure 
to  sympathize  with,  the  enthusiasm  of  those  special  classes  of 
agitators  whom  we  have  dubbed  with  the  too  great  name  of 
*  Socialists.'  The  schemes  of  social  reform  and  regeneration 
which  they  support  with  so  much  ardor,  however  mistaken  they 
may  be,  —  and  surely  most  of  them  are  mistaken  enough  to 
provoke  the  laughter  of  children,  —  have  the  right  end  in  view : 
they  seek  to  bring  the  individual  with  his  special  interests, 
personal  to  himself,  into  complete  harmony  with  society  with 
its  general  interests,  common  to  all.  Their  method  is  always 
some  sort  of  co-operation,  meant  to  perfect  mutual  helpfulness. 
They  speak,  too,  a  revolt  from  selfish,  misguided  individual- 
ism; and  certainly  modern  individualism  has  much  about  it 
that  is  hateful,  too  hateful  to  last.  The  modern  industrial 
organization  has  so  distorted  competition  as  to  put  it  into  the 
power  of  some  to  tyrannize  over  many,  as  to  enable  the  rich 
and  the  strong  to  combine  against  the  poor  and  the  weak.  It 
has  given  a  woeful  material  meaning  to  that  spiritual  law  that 
"  to  him  that  hath  shall  be  given,  and  from  him  that  hath  not 


660 


THE  OBJECTS  OF  GOVERNMENT. 


shall  be  taken  away  even  the  little  that  he  seemeth  to  have."  ^ 
It  has  magnified  that  self-interest  which  is  grasping  selfishness 
and  has  thrust  out  love  and  compassion  not  only,  but  free  com- 
petition in  part,  as  well.  Surely  it  would  be  better,  exclaims 
the  Socialist,  altogether  to  stamp  out  competition  by  making  all 
men  equally  subject  tcJ  the  public  order,  to  an  imperative  law 
of  social  co-operation !  But  the  Socialist  mistakes :  it  is  not 
competition  that  kills,  but  unfair  competition,  the  pretence  and 
form  of  it  where  the  substance  and  reality  of  it  cannot  exist. 

1272.  A  Middle  Ground. — But  there  is  a  middle  ground. 
The  schemes  which  Socialists  have  proposed  society  assuredly 
cannot  accept,  and  no  scheme  which  involves  the  complete  con- 
trol of  the  individual  by  government  can  be  devised  which  dif- 
fers from  theirs  very  much  for  the  better.  A  truer  doctrine 
must  be  found,  which  gives  wide  freedom  to  the  individual  for 
his  self-development  and  yet  guards  that  freedom  against  the 
competition  that  kills,  and  reduces  the  antagonism  between 
self-development  and  social  development  to  a  minimum.  And 
such  a  doctrine  can  be  formulated,  surely,  without  too  great 
vagueness. 

1273.  The  Objects  of  Society  the  Objects  of  Govern- 
ment. —  Government,  as  I  have  said,  is  the  organ  of  society, 
its  only  potent  and  universal  instrument :  its  objects  must  be 
the  objects  of  society.  What,  then,  are  the  objects  of  society  ? 
What  is  society  ?  It  is  an  organic  association  of  individuals 
for  mutual  aid.  Mutual  aid  to  what  ?  To  self-development. 
The  hope  of  society  lies  in  an  infinite  individual  variety,  in  the 
freest  possible  play  of  individual  forces  :  only  in  that  can  it 
find  that  wealth  of  resource  which  constitutes  civilization, 
with  all  its  appliances  for  satisfying  human  wants  and  mitigat- 
ing human  sufferings,  all  its  incitements  to  thought  and  spurs 
to  action.  It  should  be  the  end  of  government  to  accomplish 
the  objects  of  organized  society :  there  must  be  constant  adjust- 


1  F.  A.  Walker's  Political  Economy  (  Advanced  Course  ),  sec.  346. 


THE  OBJECTS  OF  GOVERNMENT. 


661 


ments  of  governmental  assistance  to  the  needs  of  a  changing 
social  and  industrial  organization.  Not  license  of  interference 
on  the  part  of  government,  only  strength  and  adaptation  of 
regulation.  The  regulation  that  I  mean  is  not  interference  :  it 
is  the  equalization  of  conditions,  so  far  as  possible,  in  all 
branches  of  endeavor;  and  the  equalization  of  conditions  is 
the  very  opposite  of  interference. 

1274.  Every  rule  of  development  is  a  rule  of  adaptation,  a 
rule  for  meeting  '  the  circumstances  of  the  case ' ;  but  the  cir- 
cumstances of  the  case,  it  must  be  remembered,  are  not,  so  far 
as  government  is  concerned,  the  circumstances  of  any  individ- 
ual case,  but  the  circumstances  of  society's  case,  the  general 
conditions  of  social  organization.  The  case  for  society  stands 
thus  :  the  individual  must  be  assured  the  best  means,  the  best 
and  fullest  opportunities,  for  complete  self-development :  in  no 
other  way  can  society  itself  gain  variety  and  strength.  But 
one  of  the  most  indispensable  conditions  of  opportunity  for 
self-development  government  alone,  society's  controlling  organ, 
can  supply.  All  combination  which  necessarily  creates  monop- 
oly, which  necessarily  puts  and  keeps  indispensable  means  of 
industrial  or  social  development  in  the  hands  of  a  few,  and 
those  few,  not  the  few  selected  by  society  itself  but  the  few 
selected  by  arbitrary  fortune,  must  be  under  either  the  direct  or 
the  indirect  control  of  society.  To  society  alone  can  the  power 
of  dominating  combination  belong :  and  society  cannot  suffer 
any  of  its  members  to  enjoy  such  a  power  for  their  own  private 
gain  independently  of  its  own  strict  regulation  or  oversight. 

1275.  Natural  Monopolies.  —  It  is  quite  possible  to  distin- 
guish natural  monopolies  from  other  classes  of  undertakings  ; 
their  distinctive  marks  are  thus  enumerated  by  Mr.  T.  H. 
Farrer  in  his  excellent  little  volume  on  The  State  in  its  rela- 
tion to  Trade  which  forms  one  of  the  well-known  English 
Citizen  series  :  ^ 

1  P.  71.  Mr.  Farrer  is  Permanent  Secretary  of  the  Enghsh  Board  of 
Trade  (sec.  694). 


662 


THE  OBJECTS  OF  GOVERNMENT. 


"  1.  What  they  supply  is  a  necessary,"  a  necessary,  that  is, 
to  life,  like  water,  or  a  necessary  to  industrial  action,  like  rail- 
road transportation. 

"  2.  They  occupy  peculiarly  favored  spots  or  lines  of  land." 
Here  again  the  best  illustration  is  afforded  by  railroads  or  by 
telegraph  lines,  by  water-works,  etc. 

"  3.  The  article  or  convenience  they  supply  is  used  at  the 
place  and  in  connection  with  the  plant  or  machinery  by  which 
it  is  supplied ; "  that  is  to  say,  at  the  favored  spots  or  along 
the  favored  lines  of  land. 

"  4.  This  article  or  convenience  can  in  general  be  largely,  if 
not  indefinitely  increased,  without  proportionate  increase  in 
plant  and  capital ; "  that  is  to  say,  the  initial  outlay  having 
been  made,  the  favored  spot  or  line  of  land  having  been  occu- 
pied, every  subsequent  increase  of  business  will  increase 
profits  because  it  will  not  proportionately,  or  anything  like 
proportionately,  increase  the  outlay  for  services  or  machinery 
needed.  Those  who  are  outside  of  the  established  business, 
therefore,  are  upon  an  equality  of  competition  neither  as  re- 
gards available  spots  or  lines  of  land  nor  as  regards  opportuni- 
ties to  secure  business  in  a  competition  of  rates. 

"5.  Certain  and  harmonious  arrangement,  which  can  only 
be  attained  by  unity,  are  paramount  considerations."  Wide 
and  systematic  organization  is  necessary. 

1276.  Such  enterprises  invariably  give  to  a  limited  number  of  per- 
sons the  opportunity  to  command  certain  necessaries  of  life,  of  comfort, 
or  of  industrial  success  against  their  fellow  countrymen  and  for  their 
own  advantage.  Once  established  in  any  field,  there  can  be  no  real  com- 
petition between  them  and  those  who  would  afterwards  enter  that  field. 
No  agency  should  be  suffered  to  have  such  control  except  a  public  agency 
which  may  be  compelled  by  public  opinion  to  act  without  selfish  narrow- 
ness, upon  perfectly  equal  conditions  as  towards  all,  or  some  agency 
upon  which  the  government  may  keep  a  strong  hold  of  regulation. 

1277.  Control  not  necessarily  Administration.  —  Society 
can  by  no  means  afford  to  allow  the  use  for  private  gain  and 


THE  OBJECTS  OF  GOVERNMENT. 


663 


without  regulation  of  undertakings  necessary  to  its  own  health- 
ful and  efficient  operation  and  yet  of  a  sort  to  exclude  equality 
in  competition.  Experience  has  proved  that  the  self-interest 
of  those  who  have  controlled  such  undertakings  for  private  gain 
is  not  coincident  with  the  public  interest:  even  enlightened 
self-interest  may  often  discover  means  of  illicit  pecuniary  ad- 
vantage in  unjust  discriminations  between  individuals  in  the 
use  of  such  instrumentalities.  But  the  proposition  that  the 
government  should  control  such  dominating  organizations  of 
capital  may  by  no  means  be  wrested  to  mean  by  any  necessary 
implication  that  the  government  should  itself  administer  those 
instrumentalities  of  economic  action  which  cannot  be  used  ex- 
cept as  monopolies.  In  such  cases,  as  Mr.  Farrer  says,  "  there 
are  two  great  alternatives.  (1)  Ownership  and  management 
by  private  enterprise  and  capital  under  regulation  by  the  state. 
(2)  Ownership  and  management  by  Government,  central  or 
local."  Government  regulation  may  in  most  cases  suffice.  In- 
deed, such  are  the  difficulties  in  the  way  of  establishing  and 
maintaining  careful  business  management  on  the  part  of  gov- 
ernment, that  control  ought  to  be  preferred  to  direct  adminis- 
tration in  as  many  cases  as  possible,  —  in  every  case  in  which 
control  without  administration  can  be  made  effectual. 

1278.  Equalization  of  Competition.  —  There  are  some  things 
outside  the  field  of  natural  monopolies  in  which  individual  action 
cannot  secure  equalization  of  the  conditions  of  competition  ;  and 
in  these  also,  as  in  the  regulation  of  monopolies,  the  practice  of 
governments,  of  our  own  as  well  as  of  others,  has  been  decisively 
on  the  side  of  governmental  regulation.  By  forbidding  child 
labor,  by  supervising  the  sanitary  conditions  of  factories,  by 
limiting  the  employment  of  women  in  occupations  hurtful  to 
their  health,  by  instituting  official  tests  of  the  purity  or  the 
quality  of  goods  sold,  by  limiting  hours  of  labor  in  certain 
trades,  by  a  hundred  and  one  limitations  of  the  power  of  un- 
scrupulous or  heartless  men  to  out-do  the  scrupulous  and  merci- 
ful in  trade  or  industry,  government  has  assisted  equity.  Those 


664 


THE  OBJECTS  OF  GOVERNMENT. 


who  would  act  in  moderation  and  good  conscience  in  cases 
where  moderation  and  good  conscience,  to  be  indulged,  require 
an  increased  outlay  of  money,  in  better  ventilated  buildings,  in 
greater  care  as  to  the  quality  of  goods,  etc.,  cannot  act  upon 
their  principles  so  long  as  more  grinding  conditions  for  labor 
or  more  unscrupulous  use  of  the  opportunities  of  trade  secure 
to  the  unconscientious  an  unquestionable  and  sometimes  even 
a  permanent  advantage ;  they  have  only  the  choice  of  denying 
their  consciences  or  retiring  from  business.  In  scores  of  such 
cases  government  has  intervened  and  will  intervene ;  but  by 
way,  not  of  interference,  by  way,  rather,  of  making  competition 
equal  between  those  who  would  rightfully  conduct  enterprise 
and  those  who  basely  conduct  it.  It  is  in  this  way  that 
society  protects  itself  against  permanent  injury  and  deteriora- 
tion, and  secures  healthful  equality  of  opportunity  for  self- 
development. 

1279.  Society  greater  than  Government.  —  Society,  it  must 
always  be  remembered,  is  vastly  bigger  and  more  important 
than  its  instrument.  Government.  Government  should  serve 
Society,  by  no  means  rule  or  dominate  it.  Government  should 
not  be  made  an  end  in  itself ;  it  is  a  means  only,  —  a  means  to 
be  freely  adapted  to  advance  the  best  interests  of  the  social 
organism.  The  State  exists  for  the  sake  of  Society,  not  Society 
for  the  sake  of  the  State. 

1280.  Natural  Limits  to  State  Action.  —  And  that  there 
are  natural  and  imperative  limits  to  state  action  no  one  who 
seriously  studies  the  structure  of  society  can  doubt.  The  limit 
of  state  functions  is  the  limit  of  necessary  co-operation  on  the 
part  of  Society  as  a  whole,  the  limit  beyond  which  such  com- 
bination ceases  to  be  imperative  for  the  public  good  and  be- 
comes merely  convenient  for  industrial  or  social  enterprise. 
Co-operation  is  necessary  in  the  sense  here  intended  when  it 
is  indispensable  to  the  equalization  of  the  conditions  of  en- 
deavor, indispensable  to  the  maintenance  of  uniform  rules  of 
individual  rights  and  relationships,  indispensable  because  to 


THE  OBJECTS  OF  GOVERNMENT. 


665 


omit  it  would  inevitably  be  to  hamper  or  degrade  some  for 
the  advancement  of  others  in  the  scale  of  wealth  and  social 
standing. 

1281.  There  are  relations  in  which  men  invariably  have 
need  of  each  other,  in  which  universal  co-operation  is  the  indis- 
pensable condition  of  even  tolerable  existence.  Only  some 
universal  authority  can  make  opportunities  equal  as  between 
man  and  man.  The  divisions  of  labor  and  the  combinations 
of  commerce  may  for  the  most  part  be  left  to  contract,  to  free 
individual  arrangement,  but  the  equalization  of  the  conditions 
which  affect  all  alike  may  no  more  be  left  to  individual  initia- 
tive than  may  the  organization  of  government  itself.  Churches, 
clubs,  corporations,  fraternities,  guilds,  partnerships,  unions 
have  for  their  ends  one  or  another  special  enterprise  for  the 
development  of  man's  spiritual  or  material  well-being:  they 
are  all  more  or  less  advisable.  But  the  family  and  the  state 
have  as  their  end  a  general  enterprise  for  the  betterment  and 
equalization  of  the  conditions  of  individual  development :  they 
are  indispensable. 

1282.  The  point  at  which  public  combination  ceases  to  be 
imperative  is  of  course  not  susceptible  of  clear  indication  in 
general  terms ;  but  it  is  not  on  that  account  indistinct.  The 
bounds  of  family  association  are  not  indistinct  because  they 
are  marked  only  by  the  immaturity  of  the  young  and  by  the 
parental  and  filial  affections,  —  things  not  all  of  which  are 
defined  in  the  law.  The  rule  that  the  state  should  do  nothing 
which  is  equally  possible  under  equitable  conditions  to  optional 
associations  is  a  sufficiently  clear  line  of  distinction  between 
governments  and  corporations.  Those  who  regard  the  state  as 
an  optional,  conventional  union  simply,  a  mere  partnership, 
open  wide  the  doors  to  the  worst  forms  of  socialism.  Unless 
the  state  has  a  nature  which  is  quite  clearly  defined  by  that 
invariable,  universal,  immutable  mutual  interdependence  which 
runs  beyond  the  family  relations  and  cannot  be  satisfied  by 
family  ties,  we  have  absolutely  no  criterion  by  which  we  can 


666 


THE  OBJECTS  OF  GOVERNMENT. 


limit,  except  arbitrarily,  tlie  activities  of  the  state.  The  cri- 
terion supplied  by  the  native  necessity  of  state  relations,  on 
the  other  hand,  banishes  such  license  of  state  action. 

1283.  The  state,  for  instance,  ought  not  to  supervise  private  morals 
because  they  belong  to  the  sphere  of  separate  individual  responsibility, 
not  to  the  sphere  of  mutual  dependence.  Thought  and  conscience  are 
private.  Opinion  is  optional.  The  state  may  intervene  only  where 
common  action,  uniform  law  are  indispensable.  Whatever  is  merely 
convenient  is  optional,  and  therefore  not  an  affair  for  the  state. 
Churches  are  spiritually  convenient ;  joint-stock  companies  are  capi- 
talistically  convenient;  but  when  the  state  constitutes  itself  a  church 
or  a  mere  business  association  it  institutes  a  monopoly  no  better  than 
others.  It  should  do  nothing  wliich  is  not  in  any  case  botli  indispensa- 
ble to  social  or  industrial  life  and  necessarily  monopolistic. 

1284.  The  Family  and  the  State.  —  It  is  the  proper  object 
of  the  family  to  mould  the  individual,  to  form  him  in  the 
period  of  immaturity  in  the  practice  of  morality  and  obedience. 
This  period  of  subordination  over,  he  is  called  out  into  an 
independent,  self-directive  activity.  The  ties  of  family  affec- 
tion still  bind  him,  but  they  bind  him  with  silken,  not  with 
iron  bonds.  He  has  left  his  'minority'  and  reached  his 
^majority.'  It  is  the  proper  object  of  the  state  to  give  leave 
to  his  individuality,  in  order  that  that  individuality  may  add 
its  quota  of  variety  to  the  sum  of  national  activity.  Family 
discipline  is  variable,  selective,  formative :  it  must  lead  the 
individual.  But  the  state  must  not  lead.  It  must  create  con- 
ditions, but  not  mould  individuals.  Its  discipline  must  be 
invariable,  uniform,  impersonal.  Family  methods  rest  upon 
individual  inequality,  state  methods  upon  individual  equality. 
Family  order  rests  upon  tutelage,  state  order  upon  franchise, 
upon  privilege. 

1285.  The  State  and  Education.  —  In  one  field  the  state 
would  seem  at  first  sight  to  usurp  the  family  function,  the 
field,  namely,  of  education.  But  such  is  not  in  reality  the 
case.    Education  is  the  proper  office  of  the  state  for  two  rea- 


THE  OBJECTS  OF  GOVERNMENT. 


667 


sons,  both  of  which  come  within  the  principles  we  have  been 
discussing.  Popular  education  is  necessary  for  the  preserva- 
tion of  those  conditions  of  freedom,  political  and  social,  which 
are  indispensable  to  free  individual  development.  And,  in  the 
second  place,  no  instrumentality  less  universal  in  its  power  and 
authority  than  government  can  secure  popular  education.  In 
brief,  in  order  to  secure  popular  education  the  action  of  society 
as  a  whole  is  necessary ;  and  popular  education  is  indispensa- 
ble to  that  equalization  of  the  conditions  of  personal  develop- 
ment which  we  have  taken  to  be  the  proper  object  of  society. 
Without  popular  education,  moreover,  no  government  that  rests 
upon  popular  action  can  long  endure:  the  people  must  be 
schooled  in  the  knowledge,  and  if  possible  in  the  virtues,  upon 
which  the  maintenance  and  success  of  free  institutions  depend. 
No  free  government  can  last  in  health  if  it  lose  hold  of  the 
traditions  of  its  history,  and  in  the  public  schools  these  tra- 
ditions may  be  and  should  be  sedulously  preserved,  carefully 
replanted  in  the  thought  and  consciousness  of  each  successive 
generation. 

1286.  Historical  Conditions  of  Governmental  Action. — 

Whatever  view  be  taken  in  each  particular  case  of  the  right- 
fulness or  advisability  of  state  regulation  and  control,  one  rule 
there  is  which  may  not  be  departed  from  under  any  circum- 
stances, and  that  is  the  rule  of  historical  continuity.  In  poli- 
tics nothing  radically  novel  may  safely  be  attempted.  No 
result  of  value  can  ever  be  reached  in  politics  except  through 
slow  and  gradual  development,  the  careful  adaptations  and  nice 
modifications  of  growth.  Nothing  may  be  done  by  leaps. 
More  than  that,  each  people,  each  nation,  must  live  upon  the 
lines  of  its  own  experience.  Nations  are  no  more  capable  of 
borrowing  experience  than  individuals  are.  The  histories  of 
other  peoples  may  furnish  us  with  light,  but  they  cannot  fur- 
nish us  with  conditions  of  action.  Every  nation  must  con- 
stantly keep  in  touch  with  its  past :  it  cannot  run  towards  its 
ends  around  sharp  corners. 


668 


THE  OBJECTS  OF  GOVEKNMENT. 


1287.  Summary.  —  This,  then,  is  the  sum  of  the  whole 
matter :  the  end  of  government  is  the  facilitation  of  the  objects 
of  society.  The  rule  of  governmental  action  is  necessary  co- 
operation ;  the  method  of  political  development  is  conservative 
adaptation,  shaping  old  habits  into  new  ones,  modifying  old 
means  to  accomplish  new  ends. 


INDEX. 


SUPPLEMENTARY  TO  THE  TOPICAL  ANALYSIS. 
[The  references  are  to  sections.] 


Accounts,  French  Chamber  of,  origi- 
nated, 292;  Prussian  Supreme  Cham- 
ber of,  461. 

Achajans,  supremacy  of,  in  Homeric 
times,  125. 

Adaptation  the  rule  of  political  action, 
1200  et  seq.,  1209-1211,  1286. 

Adjudication  as  a  source  of  Law,  1187, 
1188. 

Administration,  organization  of  Greek, 
110 ;  sphere  of  imperial,  in  Germany, 
421,  427^36. 

Administration  and  legislation,  under 
modern  systems,  1151-1153. 

*  Administration,'  the,  of  the  Prussian 
Government  District,  481-483;  its 
President,  483 ;  its  methods  of  work, 
482. 

Administrative  Courts,  French,  353, 
354;  Prussian,  500-502;  Swiss,  576. 

Administrative  system  of  the  Prank- 
ish monarchy,  359  et  seq. 

Agriculture,  Department  of  (U.S.), 
1119. 

Albert  the  Bear,  383. 
Alexander,  Hellenization  of  the  East 
by,  134. 

Amendment  of  French  constitution 
313,  317,  318 ;  of  the  German  consti- 
tution, 40i;  of  the  Swiss  federal, 
556;  of  the  Swedish  constitution, 
643;  of  the  Norwegian  constitution, 
649 ;  of  American  state  constitutions, 
898-903;  of  the  American  federal, 
1045. 

America,  the  English  occupation  of, 
832. 


Amphictyony,  the  Delphic,  123. 
Amtsgericht,  the  Prussian,  494,  495, 
499. 

Ancestors,  primitive  worship  of,  29, 30. 

Appeal,  French  Courts  of,  355;  the 
English  Court  of,  734. 

Archon,  creation  of  the  office  of,  in 
Athens,  68;  number  of  archons  in- 
creased to  nine,  69;  the,  Eponymus, 
69;  X\iQ,  Basileus,iB;  the,  Polemar- 
chus,  69 ;  the,  Thesmothetas,  69. 

Areopagus,  the  Senate  of  the,  relations 
of  Solon  to,  77 ;  powers  of,  curtailed 
by  Ephialtes,  91. 

Argos,  supremacy  of,  127. 

Aristides  extends  eligibility  to  office 
to  all  classes  of  the  people  in  Athens, 
89. 

Aristocracy,  English  and  ancient  con- 
trasted, 1170. 

Aristotle's  analysis  of  the  forms  of 
government,  1162,  1163 ;  his  cycle  of 
degeneracy  and  revolution,  1164 ;  in 
the  light  of  the  modern  facts  of 
politics,  1165  et  seq. 

Army,  reform  of  Roman,  by  Servius, 
146, 147  ;  place  and  power  of  Roman, 
under  the  Empire,  176;  administra- 
tion of  German,  434;  Swiss  federal, 
540;  the  Austro-Hungarian,  597;  in 
Sweden  and  Norway,  631. 

Arrondissement,  the  French,  347 ;  scru- 
tin  d\  315,  347. 

Arrondissemental  Council,  French, 
347. 

Arsenals  and  dockyards  of  the  United 
States,  1051. 


670 


INDEX. 


Articles  of  Confederation,  the,  866. 

Aryan,  the,  family,  6-8;  a  doubt  as 
to  the,  family,  9;  tradition  as  to 
descent  and  family  relationship,  11. 

Aryan  Races,  the,  their  significance 
in  the  history  of  government,  2,  3 ; 
ancient  Irish  law,  7 ;  relation  of  In- 
dia to  Aryan  development,  6 ;  doubt 
about  the  early  family  among,  9. 

Asia  Minor,  settlement  of  the  coasts 
of,  by  the  Greeks,  115. 

Assemblies,  the  colonial,  in  Virginia, 
845 ;  their  development,  854:,  855. 

Assembly,  the  Athenian  popular,  insti- 
tuted by  Solon,  75,  76 ;  payment  for 
attendance  upon  the  Athenian,  90; 
the  Spartan,  102;  summoned  by  the 
Ephors,  104;  relations  of,  to  Lycur- 
gus,  109 ;  the  French  Constituent,  of 
the  Revolution,  305,  30f5,  308 ;  French 
constituent,  of  1871-76,  311;  the 
French  National,  313,  317-320. 

Athens,  see  Topical  Analysis;  tenure 
of  property  in,  1251. 

Audit,  Court  of,  French,  354. 

Auditor,  The,  of  an  American  state, 
989,  991. 

Augustus,  transmutation  of  republican 
into  imperial  institutions  by,  165- 
170. 

Australia,  the  governments  of,  825. 

Austria,  originated  in  Ostmark,  363; 
becomes  duchy,  368 ;  won  by  Rudolph 
of  Habsburg,  370;  and  the  Empire, 
374  et  seq. ;  in  the  German  Confed- 
eration, 395;  out  of  Germany,  398; 
see  Topical  Analysis. 

Authority,  government  rests  upon, 
1154. 

Baden,  relations  of,  to  other  German 
States,  391,  397,  399,  401. 

Bailli,  use  and  development  of  office 
of,  in  France,  296,  297. 

Bankruptcy,  laws  of,  in  U.S.,  908. 

Basileus,  the  archon,  69. 

Bavaria,  relations  of,  to  other  German 
states,  394,  397,  391),  401 ;  independent 
administration  of  railways,  431;  in- 
dependent postal  and  telegraph  ser- 


vice, 432;  and  military  administra- 
tion, 434. 

Benefice,  the  feudal,  238;  in  England 

and  France,  239. 
Berlin,  government  of,  492. 
Bernadotte,  620. 

Bluntschli,  Dr.  J.  C,  definition  of  a 
state,  16. 

Board  of  Trade,  the  English,  694. 

Bohemia,  acquisition  of,  by  Austria, 
580,  581;  history  of,  589-591. 

Bonapartists,  French,  311. 

Boroughs,  English,  representation  of, 
in  House  of  Commons,  667,  669,  708; 
geographical  relations  of,  to  counties 
in  parliamentary  representation,  709 ; 
*  County  '  boroughs,  762,  797 ;  crea- 
tion and  constitution  of,  794,  795; 
judicial  status  of,  796;  classes  and 
powers  of,  797-801 ;  American,  1030 
et  seq. 

Bosnia,  586,  598. 

Bourgeoisie,  gift  of,  by  French  kings, 
278. 

Brandenburg,  the  Mark,  363,  383  et 
seq. ;  early  organization  of,  441-^5 ; 
process  of  centralization  in,  446;  see 
Prussia,  Topical  Analysis. 

Budget,  the  national,  in  England,  697; 
the  county,  774-776. 

Budget  Committee,  the  French,  332. 

Bull,  the  Golden,  names  electors  of 
Holy  Roman  Empire,  371. 

Bundesgericht,  the  Swiss.  See  Fed- 
eral Court. 

Bundesrath,  the  German,  its  compo- 
sition and  character,  405 ;  representa- 
tion of  the  states  in,  406;  functions 
of,  407^10;  its  organization,  411, 
412. 

Bundesrath,  the  Swiss.   See  Federal 

Council. 
Burggraf,  the,  442,  443. 
Burke,  Edmund,  on  the  development 

of  the  colonial  assemblies  in  America, 

854. 

Cabinet,  the  French,  322,  324;  the 
French  departmental,  334;  the  Eng- 
lish, its  origin,  674;  stages  of  its 


INDEX. 


671 


development,  675 ;  history  of  minis- 
terial responsibility,  670,  677;  as 
Executive,  078,  700;  the  Sovereign 
not  a  member  of,  679;  position  of, 
080;  appointment  of,  081;  its  compo- 
sition, 682-<)85;  its  parliamentary 
responsibility,  680,  687;  its  legal 
status,  688;  its  function  in  legisla- 
tion, 689. 

Caesar,  Julius,  place  in  Roman  consti- 
tutional history,  1(34. 

Canada,  tlie  Government  of,  818-824. 

Cantonal  Legislatures,  the  Swiss,  517, 
518;  Executives,  in  Switzerland,  523. 

Cantons,  the  French,  348;  the  Swiss, 
governments  of,  see  Topical  Analy- 
sis. 

Capets,  concentration  of  feudal  power 

by  the,  253,  269,  285,  280. 
Carolingians,  rise  and  influence  of,  252. 
Cassation  Court,   the    French,  3.55; 

courts  of  the  Swiss  cantons,  560; 

chamber  of  the  Swiss  federal  court, 

575. 

Censor,  Roman,  156. 

Centuries  created  by  Servius,  140, 147; 
participate  in  the  choice  of  consuls, 
148,  156 ;  later  civil  functions  of,  155. 

Chambers,  French,  sovereignty  of,  313 ; 
as  National  Assembly,  317-320;  gov- 
ernment by  the,  333;  in  case  of  un- 
lawful dissolution  of,  310. 

Chancellor,  the  Imperial,  in  Germany, 
422-424 ;  in  the  Bundcsrath,  411,  425; 
and  the  Vice  Chancellor,  426;  the 
Swiss  federal,  545. 

Chancellor,  the  Lord,  in  England,  705. 
737. 

Chancery,  English  Court  of,  its  origin, 
666 ;  division  of  the  High  Court,  732, 
733. 

Change,  principles  of,  in  primitive  so- 
ciety, 34,  ;30-45 ;  effected  by  competi- 
tion of  customs,  37,  ;38;  by  migration 
and  conquest,  40,  41 ;  by  imitation 
and  by  individual  initiative,  42,  43. 

Charles  the  Great  promulgates  version 
of  the  Roman  Law,  231,  251;  estab- 
lishes '  Holy  Roman  Empire, '  250. 

Charters,  American  colonial,  848-850; 


and  constitutions,  rule  of,  in  modern 
political  development,  1137  et  seq. 

Choice  in  the  development  of  institu- 
tions, 24 ;  of  rulers  a  step  of  develop- 
ment in  primitive  society,  44. 

Church,  the  Roman  Catholic  as  a  unify- 
ing force  in  the  Middle  Ages,  248,  249, 

Circle  (County),  the  Prussian,  485-487  ; 
its  Committee,  486,  501;  its  Diet, 
487 ;  the  Aiistrian  financial,  010. 

Cities,  Imperial,  of  Holy  Roman  Em- 
pire, 372 ;  Prussian,  government  of, 
490-493;  English,  government  of. 
See  Boroughs  ;  American,  1030  et 
seq. ;  their  organization,  1035-1037. 

Citizen,  approach  of  the  ancient  Greek 
or  Roman,  to  complete  membership 
of  the  state,  56. 

Citizenship,  begins  to  be  dissociated 
with  kinship,  190;  Roman,  and  the 
law,  210;  in  the  German  Empire, 
437,  919;  in  Switzerland,  525,  919; 
in  Austria-IIanffary,  603 ;  in  Sweden- 
Norway,  6:35;  in  the  U.S.,  915,  916; 
elements  of  confusion  touching,  917; 
naturalization,  918;  under  a  con- 
federation, 920. 

'  City,'  the  ancient,  at  first  a  confeder- 
ate centre,  5;j-56;  contrasted  with 
modern  centres  of  population,  53;  a 
confederacy  of  'houses,'  55;  religion 
of  the,  61 ;  decay  of  the  antique,  02; 
absorbs  its  constituent  parts,  04-t>(3 ; 
the,  of  Solon,  07 ;  the,  the  centre  of 
ancient  politics,  188. 

Civil  Service  Reform,  1103-1105 ;  Com- 
mission, 1120. 

Classes,  the  four  property,  created  by 
Solon,  73;  the  five  property,  created 
by  Servius,  140,  147;  non-citizen,  in 
Athens,  93;  in  Sparta,  98;  in  Rome, 
152;  constitutional  influence  of,  in 
Rome,  153-150 ;  in  general  in  ancient 
politics,  191. 

Clisthenes,  reforms  of,  in  Athens,  81- 
87;  success  of  constitutional  meas- 
ures of,  88. 

Code,  the,  of  Draco,  71 ;  the  first  Roman, 
I  the  XII.  Tables,  198;  the,  of  Theo- 
dosius,  215,  256;  of  Justinian.  215; 


672 


INDEX. 


of  Alaric,  231,  256;  of  Sigismund, 
231 ;  of  Xapoleon,  261. 

Godrus,  the  last  king  of  Athens,  67; 
family  of,  in  the  archonship,  68. 

i  olonial  Expansion,  EnriUsh,  813; 
policy,  814-816;  courts,  powers  of, 
826;  governors,  powers  of,  828;  or- 
ganization in  Ntvj  England,  840; 
expansion  without  separation  in  the 
South,  842;  society  in  the  South,  843. 

Colonies,  English,  government  of,  see 
Topical  Analysis  ;  in  New  England, 
835  ,  836,  837-840;  in  the  South,  841- 
846;  the  Middle,  in  America,  847; 
development  of  constitutional  liberty 
in  the  American,  854-856;  their  po- 
litical sympathy,  857 ;  separateness 
of  their  governments,  864. 

Colonies,  the  Greek,  and  the  Greek 
colonial  system,  118 ;  constitutions  of 
Greek,  120 ;  law  of  constitutional 
modification  among  Greek,  121. 

Columbia,  District  of,  1048,  1050;  the 
courts  of,  1093,  1094. 

Comitatus,  the  Teutonic,  225,  228;  and 
the  feudal  relations,  239. 

Comitia  curiata,  l-iA;  elects  Tribunes, 
154;  survives  changes,  155;  centuri- 
ata,  creation  and  character,  146, 147 ; 
chooses  consuls,  148,  156 ;  later  pow- 
ers of ,  155;  tributa  absorbs  legisla- 
tive sovereignty,  155. 

Commendation,  feudal,  240. 

Commerce,  Interstate,  regulation  of, 
in  U.S.,  912. 

Commission,  the  French  Departmen- 
tal, 345. 

Committees,  French  legislative,  330- 
3.32;  ot  Germsin  Binidcsrath,  4:12;  of 
German  Reichstarj,  418; 

Committees,  Standing,  in  American 
state  legislatures,  936 ;  of  the  fed- 
eral Senate  (U.S.),  1061-1063;  of  the 
federal  House  of  Representatives 
(U.S.),  1071-1076. 

Common  Law  courts,  in  American 
states,  1V44-953. 

Cojnmon  Pleas,  Englisli  Court  of,  its 
origin,  6()6. 

Commons,  House  of,  its  origin,  671 ;  its 


original  character,  707 ;  county  and 
borough  representatives  in,  708;  re- 
form of  representation  in,  710-715; 
election  and  term  of,  716-719 ;  sum- 
mons, electoral  writ,  prorogation, 
720-723;  organization  of,  724;  hall 
and  seating  of,  725. 

Communes,  mediaeval  rural,  in  France, 
274;  the  modern  French,  their  or- 
ganization, functions,  etc.,  349-352; 
the  Prussian  rural,  489 ;  the  Prussian 
city,  490-493;  the  Swiss,  525,  526; 
the  Austrian,  610;  the  Hungarian, 
613;  the  Swedish,  642;  the  Norwe- 
gian, 648. 

Competition,  Equalization  of,  1278. 

Comptroller,  the,  of  an  American  state, 
989,  f>91. 

Comptroller-General,  position  and 
power  of,  in  pre-revolutionary 
France,  303. 

Conceptions,  certain  legal,  universal, 
1212. 

Confederacy  of  the  Rhine,  394,  401. 

Confederation,  principle  of,  in  primi- 
tive society,  52-57 ;  a,  contrasted 
with  a  modern  federal  state,  1141- 
1143. 

Confederation,  the  Swiss,  its  emer- 
gence in  Germany,  373 ;  the  German, 
of  1815,  395 ;  the  North  German,  397 ; 
the  American,  of  1781,  865;  its  con- 
stitution, 8(j6  ;  its  weakness,  867 ;  citi- 
zenship under  a,  920. 

Contiict  of  Laws  in  the  U.S.,  904-910. 

Conflicts,  French  Tribunal  of,  357; 
Prussian  Court  of,  502;  Swiss  Fed- 
eral Assembly  as  a  court  of,  558. 

Congress,  the,  of  the  Confederation, 
865-867;  of  the  U.S.,  1054  et  seq.; 
Acts  of,  1077-1081 ;  and  the  Execu- 
tive, 10()3,  1076,  1107, 1108. 

Connecticut,  Charter  of,  849. 

Conquest,  effect  of,  on  race  habits  and 
institutions,  41 ;  effects  of,  on  Roman 
constitution,  151, 157-160 ;  effects  of, 
upon  Teutonic  institutions,  234-237 ; 
effects  of,  upon  Teutonic  institutions 
in  England,  653. 

Consilia  plebis,  154. 


INDEX. 


673 


Consilium  tributum  plebis  elects  Trib- 
unes, 155. 

Constantine,  governmental  reforms  of, 
181-184;  separation  of  civil  from 
military  command  by,  181 ;  territo- 
rial division  of  the  Empire  by,  181- 
182;  civil  provincial  officers  under, 
181,  182;  military  provincial  officers 
under,  183;  household  offices  estab- 
lished by,  184. 

Constituent  functions  of  government, 
1233,  1247-1254. 

Constitution,  the  French,  framing  of, 
311;  character  of,  312;  amendment 
of,  313,  317,  318;  the  Siviss,  510;  its 
character,  511,  512;  its  indefinite 
grants,  513 ;  its  guarantee  of  canto- 
nal constitutions,  514;  its  amend- 
ment, 556;  Austro-Hungarian,  of 
1867,  592  ,  594;  the  Swedish,  oscil- 
lating development  of,  619;  its 
amendment,  643;  the  Norwegian, 
621,  622;  its  amendment,  649;  the 
English,  730;  of  the  U.  S.,  and  col- 
onial precedents,  8(3i)-871 ;  charac- 
ter of  the  government  formed  by 
it,  872  et  seq. ;  powers  granted  by  it 
to  the  federal  government,  890; 
powers  withheld  by  it  from  the 
states,  891;  powers  left  by  it  to 
states,  892,  893;  its  general  charac- 
ter, 1045 ;  its  amendment,  1045. 

Constitutional  development,  English, 
as  compared  with  American,  858  et 
seq. 

Constitutions,  American  state,  non- 
constitutional  provisions  in,  894-897, 
925  ;  amendment  of,  898-903. 

Consuls,  Roman,  creation  of  office  of, 
148;  chosen  by  Comitia  Centuriata, 
148,  156 ;  relations  of.  to  Senate,  149, 
150 ;  steps  towards  the  admission  of 
plebeians  to  office  of,  156 ;  under  the 
Empire,  166,  167,  170,  n. ;  of  Italian 
towns,  276. 

Contract,  absence  of  the  idea  of,  from 
primitive  society,  17 ;  the,  theory  of 
the  origin  of  government,  18. 

Control,  Central,  over  local  adminis- 
trative bodies  in  France,  34(5,  347, 


351,  352;  in  England,  800,  801,  805, 
812 ;  in  American  state  governments, 
973-977,  993,  91)4. 
Control  not  necessarily  administration, 
1277. 

Conveniences  of  society,  the,  adminis- 
tration of,  by  the  state,  1260. 

Corporations,  law-making  by,  1193; 
regulation  of,  by  the  state,  1258. 

Corpus  Juris  Civilis,  215-217;  study 
of,  in  the  Middle  Ages,  216,  258;  sub- 
sidiary authority  in  Germany,  266, 

Council  of  Elders  under  patriarchal 
presidencies,  48,  49;  representative 
confederate  character  of,  57;  the 
Spartan,  101;  election  to  Si)artan, 
103;  probouleittic  legislative  func- 
tions of  Spartan,  101 ;  judicial  func- 
tions of  Spartan,  101,  104,  lOi) ;  asso- 
ciated with  early  Roman  kings,  144. 

Council  of  Ministers,  French,  322,  325 ; 
Prussian,  460. 

Council  of  State,  the  French,  origi- 
nates in  Feudal  Court,  291,  292 ;  its 
development  and  differentiation, 292 ; 
its  composition  and  functions,  353; 
the  Prussian,  458,  459;  the  Norice- 
gian,  644,  645. 

Council  of  States  (StUnderath) ,  The 
Swiss,  its  composition,  552,  553;  its 
functions,  555,  556. 

Councils,  the  English  County,  their 
constitution,  764-768;  their  powers, 
770-777. 

County,  the  English,  and  the  Saxon 
Kingdom,  655 ;  representation  of,  in 
House  of  Commons,  708 ;  geographi- 
cal relations  of,  to  boroughs  in  par- 
liamentary representation,  670,  709; 
its  historical  rootage,  751 ;  early 
evolution  of  its  organs,  752;  see 
Topical  Analysis  ;  the,  in  the  U.  S., 
1025-1027;  in  the  South,  844,  1028; 
where  the  township  exists,  1029. 

County  Courts,  the  English,  at  present, 
739-741 ;  the  ancient,  751,  752. 

Courts,  the  English  law,  their  deriva- 
tion, 666;  their  present  composition 
and  jurisdiction,  731  et  seq.;  powers 
of  English  colonial,  826;  interpreta- 


674 


INDEX. 


tion  of  federal  law  by  American 
state,  888,  1096;  the,  of  American 
states,  940-962;  of  the  U.S.,  1085 
et  seq. ;  their  procedure,  1095. 

Crete,  power  and  institutions  of,  126. 

Criminal  law,  diversities  of,  in  U.S.,  907. 

Croatia,  Slavonic  village-communities 
in,  7 ;  acquired  by  Austria,  584. 

Croatia-Slavonia,  government  of,  614. 

Crown  Colonies,  government  of  the 
present  English,  827;  in  America, 
853. 

Crusades,  the,  and  the  mediaeval  towns, 
279 ;  and  the  mediaeval  French  mon- 
archy, 286. 

Curies,  the  Roman,  confederate  part 
in  early  politics,  144;  exclusive  As- 
sembly of  {Comitia  curiata),  elects 
Tribunes,  154 ;  survives  change,  155. 

Custom,  the  reign  of,  in  primitive 
society,  31,  32 ;  and  written  law  in 
France,  257;  local,  and  Roman  law 
in  France,  261-265;  as  a  source  of 
law,  1184, 1185, 1194,  1195. 

Customs,  differences  of,  in  primitive 
society,  35;  antagonism  between, 
36;  competition  of,  37;  prevalence 
of  superior,  38. 

Czar,  the,  of  Russia,  nature  of  his  power, 
1204,  1210. 

Dalmatia,  Slavonic  village-communi- 
ties in,  7 ;  acquired  by  Austria,  585. 

Danes,  The,  615. 

Decemvirs,  The,  198. 

Delegations,  the  Austro-Hungarian, 
602. 

Delos,  the  Confederacy  of,  and  its  in- 
fluence upon  the  position  of  Athens, 
129;  transmuted  into  Athenian  em- 
pire. 130. 

Delphi,  centre  of  an  amphictyony,  123; 
influence  of  the  Oracle  at,  124 ;  seat 
of  religious  games,  128. 

Demes,  new  arrangement  and  combina- 
tion of,  by  Clisthenes,  82,  83. 

A7}/ios  (people),  the  jirimitive  Greek, 
composition  and  character  of,  52. 

Democracy,  its  present  and  future 
prevalence,  1171;  the  modern,  dif- 


ferent in  form  from  the  ancient, 
1172;  and  also  in  nature,  1173; 
growth  of  the  democratic  idea,  1174. 

Denmark,  union  of,  with  Sweden  and 
Norway,  617. 

Departments  of  Administration, 
French  central,  temp.  Louis  XIV.  294, 
295;  organization  of  French,  334; 
functions  of  French,  335;  the  Ger- 
man imperial,  421-435 ;  the  Prussian, 
457,  463 ;  the  Swiss  federal,  534,  535 ; 
the  Common,  of  Austria-Hungary , 
597;  and  the  Delegations,  602  ;  the 
Austrian,  605 ;  the  Swedish,  639 ;  the 
Norioegian,  645;  the  English,  691 
et  seq.;  American  federal,  1109-1120. 

Departments,  the  French,  organized 
by  Napoleon,  308 ;  their  present  or- 
ganization, 338-346. 

Deputies,  French  Chamber  of,  compo- 
sition, etc.,  of,  315;  dissolution  of, 
by  President,  315,  320,  321. 

De-socialization,  modern,  of  the  state, 
1244. 

Development  of  government,  probable 
early,  see  I'o'pical  Analysis ;  con- 
tinuity of,  1121 ;  order  discoverable 
in,  1123;  course  of,  in  the  ancient 
world,  1123 ;  England's  contributions 
to,  1125  et  seq. ;  contributions  of  the 
Romans  to,  1126  et  seq. 

Diocletian,  division  of  Empire  by,  179, 
180. 

Discipline,  the  Spartan  state,  107,  109. 

Discussion  begins  to  determine  insti- 
tutions, 192;  Scientific,  as  a  source 
of  Law,  1191. 

Dispositio  Achillea,  the,  388. 

Dissolution  of  French  Chamber  of  Dep- 
uties by  the  President,  315,  320,  321. 

District,  Prussian  Government,  480- 
484;  its  Committee,  484,  501;  the 
Prussian  Magisterial,  488;  Courts, 
Prussian,  494  et  seq. ;  Courts,  Prus- 
sian Superior,  494  et  seq. ;  the  Swiss, 
524. 

District  Attorney,  the  U.  S.,  1091. 
Divorce,  conflict  of  laws  touching,  in 

U.  S.,  905. 
Domains,  Prussian  Chamber  for  War 


INDEX. 


675 


and,  448  et  seq.,  481 ;  fusion  of  the 
administration  of  War  and  Domains 
in  Prussia,  450 ;  Chambers,  Prussian, 
449. 

Draco,  his  code,  71. 

Durham,  Lord,  in  Canada,  816. 

East,  Hellenization  of,  by  Alexander, 
134 ;  character  of  Greek  civilization 
in  the,  135,  136. 

Economic  Council,  the  Prussian,  462. 

'  Economic  laws,'  in  Sweden,  625. 

Economic  relations  of  Austria  and 
Hungary,  600. 

Edict,  the  Praetor's,  202;  of  the  Ro- 
man provincial  governors,  207. 

Education  Department  of  the  English 
Privy  Council,  699,  810. 

Education,  Public,  plan  of,  in  England, 
811;  a  function  of  the  state,  1262, 
1285. 

Elders,  Council  of,  under  patriarchal 
presidencies,  48,  49;  confederated 
family  chiefs  in  the  primitive  coun- 
cil, 57 ;  loss  of  separate  powers,  65 ; 
the  Spartan  Council  of,  101 ;  election 
of  Spartan,  103;  judicial  functions 
of  the  Spartan  Council  of,  101,  104, 
106;  probouleutic  legislative  func- 
tions of,  101 ;  loss  of  importance  by, 
190. 

Elector,  the  Great,  of  Brandenburg, 
391. 

Electors,  the  German,  369,  371. 

Elgin,  Lord,  on  the  powers  of  English 
colonial  governors,  828. 

Emperor,  the  Austrian,  as  Emperor- 
King,  595,  596 ;  as  monarch  of  Aus- 
tria, 604,  ()07 ;  power  of,  to  legislate 
in  recess  of  Reichsrath,  608 ;  as  King 
of  Hungary,  611. 

Emperor,  the  German,  402,  403;  shares 
sovereignty  of  the  Empire  only  as 
King  of  Prussia,  405. 

Emperor,  the  Roman,  creation  of 
office  and  powers  of,  165-169;  na- 
tionality of  later  incumbents  of 
office  of,  175. 

Empire,  Athenian,  130. 

Empire,  the  German,  origination  of 


present,  399,  401;  government  of, 

see  Topical  Analysis. 

Empire,  '  Holy  Roman,'  establishment 
and  influence  of,  in  Middle  Ages, 
250,  251 ;  influence  of,  on  spread  of 
Roman  law  in  Germany,  266 ;  history 
of,  364  et  seq. ;  becomes  exclusively 
German,  .375 ;  in  eighteenth  century, 
^0 ;  end  of,  381. 

Empire,  Roman,  establishment  of,  160, 
164-169;  causes  which  led  to,  159- 
163;  growth  of  new  offices  under, 
172,  177,  178,  181-185;  division  of 
Roman  into  Eastern  and  Western, 
136,  143,  186,  187;  effect  of,  upon 
politics,  195;  unifying  influence  of 
the  Holy  Roman,  in  the  Middle  Ages, 
250,  251. 

England,  entrance  of  Roman  law  into, 
267. 

English,  the,  and  the  Romans  com- 
pared, 1126-1128;  contrasted,  1129, 
1130. 

English  institutions,  adaptation  of,  in 
America,  833,  8;^,  858  et  seq. ;  grew 
by  consolidation,  859. 

Ephialtes,  constitutional  reforms  of,  in 
Athens,  91. 

Ephors,  the  Spartan,  104,  105. 

Eponymus,  the  Archon,  69. 

Equity,  courts  of,  in  American  states, 
954-956;  fusion  of,  with  common 
law,  955;  as  a  source  of  law,  1189, 
1190. 

Estates,  Prussian  Communal,  479. 

Estimates,  the,  in  England,  698. 

Ethics,  Law  and,  1213. 

Eupatrids,  the  Athenian,  and  the  early 
archonship,  69 ;  and  the  party  of  the 
plain,  70;  as  landlords  and  creditors, 
72;  preferred  for  office  under  the 
Solonian  constitution,  75;  shut  out 
from  exclusive  privilege  by  Clis- 
thenes,  82,  84,  85. 

Exchequer,  English  Court  of,  its  origin, 
666 ;  the  Chancellor  of  the,  097. 

Executive,  the  Swiss  cantonal,  523; 
the  Swiss  federal,  527  et  seq.  ;  of  an 
American  state,  964-971 ;  contrasted 
with  federal,  972;  its  real  character, 


676 


INDEX. 


974-977 ;  several  officers  of,  978-992 ; 
constitutional  diffusion  of,  993;  no 
hierarchy,  m^;  the  federal  (U.  S.), 
1097  et  seq. ;  relations  of,  to  Congress, 
1063,  1076,  1107,  1108. 
Extradition,  in  Swiss  cantons,  542. 

Family,  the,  its  origin :  was  it  patri- 
archal, 5;  the  Greek  and  Roman, 
8;  the  non- Aryan,  its  organization, 
10;  development  of  the  state  from 
the  patriarchal,  12 ;  the  primal  unit 
of  political  organization,  26 ;  and  the 
state,  1284. 

Father,  the,  authority  of,  necessary  to 
perfected  government  in  primitive 
society,  25 ;  early  sanction  of  author- 
ity of,  26;  primitive  priesthood  of 
the,  58,  59. 

Federal  Assembly,  the  Swiss,  546- 
558. 

Federal  Council,  the  Swiss,  528-538; 
its  mixed  functions,  536-539;  as  an 
administrative  court,  576. 

Federal  Court,  the  Swiss,  its  origin, 
511,  544,  567;  its  composition,  568; 
its  jurisdiction,  569-575. 

Federal  State,  the  modern,  contrasted 
with  Confederations,  1141-1143 ;  dis- 
tinguishing marks  of  the  modern, 
1144-1146. 

Federation  the  process  of  growth  in 
America,  859. 

Feudalism,  a  fusion  of  Germanic  with 
Roman  institutions  and  conceptions, 
233;  defined,  238;  local  differences 
in  methods  of,  239;  results  of,  241- 
244;  unifying  influences  checking, 
247-251 ;  centralizing  forces  result- 
ing from,  252-254 ;  and  sovereignty, 
243 ;  and  the  towns,  244 ;  effects  of, 
in  France,  268.  270-272;  and  the 
Crusades,  279,  286 ;  in  Germany  con- 
trasted with  feudalism  in  France, 
358  et  seq.;  in  Switaerland,  505;  the 
Norman,  in  England,  658 ;  the  feudal 
system  in  England,  660;  and  the 
modern  monarch,  1124;  and  the 
functions  of  government.  1242,  1243. 

Finance,  administration  of,  in  Prussia 


down  to  time  of  Frederic  the  Great, 
449. 

Folk-moot,  the  English,  654. 

Force  at  the  basis  of  government,  1154 

et  seq. ;  in  ancient  and  in  modern 

systems,  1156,  1157. 
Foreign  Affairs,  in  the  German  Empire, 

427. 

Forms  of  government,  1161  et  seq.; 

see  Topical  Analysis. 
France,  entrance  of  Roman  law  into, 

260-265. 

Franchise,  the  parliamentary,  in  Prus- 
sia, 467,  468 ;  parliamentary,  in  Aus- 
tria, 607;  Hungarian,  612;  Norwe- 
gian, 646 ;  in  England,  708,  710-712 ; 
the  English  county,  769 ;  in  the  Eng- 
lish parish,  784;  in  the  English 
Unions,  791 ;  in  the  English  boroughs, 
795;  in  the  American  states,  917, 
937-939:  in  federal  elections  (U.S.), 
1069,  1070. 

Frederic  the  Great,  380,  393. 

Frederic  Barbarossa,  368. 

Functions  of  Government,  see  Topical 
Analysis. 

Galicia,  585. 

Games,  the  various  sacred,  128 ;  influ- 
ence of,  in  Greece,  128. 

Gemeinde,  the  Swiss,  see  Communes. 

General  Council,  the,  of  the  French 

Department,  316,  S41-344. 
['Generality,'  the  French,  300;  gives 
place  to  modern  Department,  308. 

Gens,  see  *  House.' 

Germany,  entrance  of  Roman  law  into, 
266. 

I  Gneist,  Professor,  influence  of,  upon 
Prussian  administration,  453. 

Gods,  private  family  and  city,  in  primi- 
tive times,  59. 

Government,  its  origin  in  kinship,  4; 
choice  in  the  development  of,  24 ;  its 
beginnings  in  the  discipline  of  the 
patriarchal  family,  25 ;  an  organ  of 
society,  1160,  1269,  1273,  1279;  see 
Topical  Analysis. 

Governors,  powers  of  English  colonial, 
828;  of  American  states,  9&4;  their 


INDEX, 


677 


term  of  office,  9G7;  their  qualifica- 
tions, 968;  their  relations  to  other 
state  officials,  972-976,  993;  their 
duties  and  powers,  978-981, 

Gracchi,  the,  measures  and  fate  of,  163. 

Graf,  the,  as  an  official  under  the 
Frankish  monarchy,  359,  360,  362. 

Great  Council,  the,  of  the  Norman 
kings,  659 ;  evolution  from  it  of  Par- 
liament, the  Cabinet,  and  the  courts 
of  law,  662  et  seq. 

Greater  Britain,  831. 

Greece,  Grovernments  of,  see  Topical 
Analysis. 

Greeks,  original  migrations  of,  112; 
influence  of  the  Phoenicians  upon 
the,  113;  remigrations  and  settle- 
ment of  the  Mediterranean,  114-117 ; 
colonial  system  of  the,  118-121 ;  union 
and  nationality  among,  122 ;  religious 

t  community  among,  123,124;  political 
aggregations  of,  125-127 ;  games  and 
festivals  among,  128;  eastern  and 
western,  135, 142 ;  subjection  of  the, 
to  Rome,  143. 

Guilds,  the  mediaeval  trade,  245. 

Gustaf  Adolf,  619. 

Gustaf  Eriksson,  618. 

Habit  conditions  legal  development, 

1200-1208. 
Habsburg,  first  emperor  of  House  of, 

370 ;  the,  marriages,  378. 
Hardenberg,  Count,  452. 
HelifEa,  institution  of  the,  in  Athens, 

and  character  and  functions  of,  78 ; 

expansion  of,  by  Clistheues,  85. 
'Hellas,'  meaning  of  the  term.  111; 

law  of  constitutional  modification 

in,  121 ;  see  Topical  Aiialysis. 
Hellenotamise,  officers  of  the  Delian 

Confederacy,  129. 
Helots,  the  Spartan,  97. 
Helvetic  Republic,  the,  508. 
Henry  III.,  of  the  Holy  Roman  Empire, 

367. 

Herzegovina,  586,  598. 

High  Court  of  Justice,  the  English, 

732,  733,  738,  740,  743. 
Hobbes,  Thomas,  the  Leviathan  of,  18 ; 


views  on  the  origin  of  political  so- 
ciety, 18;  theory  of  a  Law  of  Nature, 
18 ;  idea  of  an  original  state  of  war, 
18. 

Hohenstaufen,  the,  368. 

Hohenzollern,  the,  acquire  Branden- 
burg, 387. 

Home  Office,  the  English,  692. 

Home  Rule  in  Bohemia  and  Hungary, 
589,  590. 

Hooker,  Richard,  Ecclesiastical  Polity, 
18 ;  on  the  law  of  Nature  in  its  con- 
nection with  the  origin  of  society,  18. 

'House,'  the,  or  geyis,  12;  a  complete 
organism  within  the  ancient  'city,' 
53;  its  junction  with  a  phratry,  54; 
a  constituent  member  of  the  '  city,' 
55 ;  political  disintegration  of,  65,  66. 

House  of  Representatives,  see  Repre- 
sentatives, House  of. 

Household  Officers,  under  the  Roman 
Empire,  177,  184;  in  the  French 
Monarchy,  291. 

Houses,  reasons  for  two  legislative,  in 

"England,  671;  in  U.  S.,  928-931; 
names  of  two  legislative,  in  Ameri- 
can states,  933. 

Hundred,  the  English,  and  its  '  moot,' 
654. 

Hungary,  acquisition  of,  by  Austria, 
580,  583;  relations  of,  to  Austria, 
587 ;  see  Topical  Analysis. 

Imitation,  tribal  and  individual,  a 
force  of  change  in  primitive  society, 
42,  43, 

Impeachment,  history  of  ministerial, 
in  England,  676;  disappearance  of, 
in  England,  677. 

India,  contains  evidence  of  old  Aryan 
habit  and  organization,  6;  govern- 
ment of  British,  829,  830. 

Individualism,  unknown  in  ancient 
politics,  1175;  introduced  with 
Christianity  and  the  prevalence  of 
Teutonic  institutions,  1176 ;  relative 
under  feudal  system,  1177 :  destroyed 
by  the  modern  monarchy  in  its  first 
forms,  1178 :  revived  by  Renaissance 
and  Reformation,  1179. 


678 


INDEX. 


Initiative,  individual,  entrance  and 
influence  of,  in  primitive  society,  43. 

Instruction,  Superior  Council  of  Pub- 
lic, French,  354. 

Intendant,  the  French,  299;  origin 
and  development  of  the  office,  301 ; 
and  the  Comptroller-General,  303. 

Inter-Cantonal  judicial  comity  in  Switz- 
erland, 577. 

Interior,  Department  of  the  (U.  S.), 
1118. 

International  Law,  1216,  1217. 
Interpellations  in  the  French  Cham- 
bers, 328. 

Interpretation,  growth  of  Roman  law 
by,  199,  201, 202,  212,  213 ;  as  a  source 
of  law,  1187,  1188. 

Interregnum,  the,  in  Holy  Roman  Em- 
pire, 369. 

Interrex,  The  Roman,  144. 

Inter-state  Commerce,  regulation  of, 
in  U.  S.,  912 ;  the,  Commission,  1120. 

Ireland,  the  administration  of,  704. 

Irish  Law,  ancient,  its  significance,  7. 

Joachim  II.,  of  Hohenzollern,  389. 

Joint  Councils,  the,  of  Sweden  and 
Norway,  634. 

Judges,  election  of  American  state,  959, 
960;  and  qualifications  required  of 
them,  961;  appointment  and  tenure 
of  federal,  1088;  their  relations  to 
each  other,  1089 ;  and  their  salaries, 
1090. 

Judices,  the  Roman,  200. 

Juries,  in  England  in  civil  cases,  742. 

Jurisconsults,  the  Roman,  under  the 
Empire,  213-216. 

Jurisdiction  (judicial)  of  the  U.  S., 
1082, 1083 ;  of  existing  federal  courts, 
1085-1087. 

Jurisprudence,  1223  et  seq. ;  analytical 
school  of,  1224,  1226-1228. 

Jurists,  the  Roman,  211 ;  their  influ- 
ence, 212;  as  jurisconsults,  213-216. 

Jury-courts,  expansion  of  the  Athenian 
popular,  by  Clisthenes,  85  ;  payment 
for  service  in  the  Athenian,  90;  in- 
creased, 92 ;  Roman,  200 ;  the  French, 
356 ;  Fiussi2LJi(Schwurgerichte) ,  497. 


Jus  civile,  203;  affected  by  the  Jiis 
gentium,  206,  209,  210,  212. 

Jus  gentium,  originates  with  the  Prsd- 
torperegrinus,  its  character,  204 ;  not 
international  law,  205 ;  influence  of, 
upon  the  jus  civile,  206,  209,  210,  212 ; 
grows  in  the  Provinces,  207 ;  receives 
sanction  from  the  '  Law  of  Nature,' 
208,  209;  influence  of  the  juriscon- 
sults upon  the,  211,  212. 

Jus  respondendi,  the,  213. 

Justice,  tribal,  under  patriarchal  presi- 
dencies, 49;  administration  of,  in 
Athens,  69,  77,  78,  85,  90,  91 ;  admin- 
istration of,  in  Sparta,  101,  104,  106; 
administration  of  rural,  in  mediaeval 
France,  275;  centralization  of  the 
administration  of,  in  France,  260- 
265, 296. 302,  353-357 ;  administration 
of,  in  Germany,  410,  436 ;  in  Prussia, 
449,  494-503;  in  Switzerland,  538, 
543;  in  the  cantonal  courts,  559-566; 
in  the  Federal  Court,  567-575 ;  admin- 
istrative cases,  576;  in  England,  731- 
746;  in  the  states  of  the  American 
Union,  940-962;  under  the  federal 
government  (U.  S.),  1082-1096. 

Justice,  Department  of  (U.  S.),  1116. 

Justices  of  the  Peace,  French,  348, 
355;  English,  criminal  jurisdiction 
of,  743;  in  Quarter  and  Petty  Ses- 
sions, 744;  character  and  repute, 
745,  757 ;  history  of  office  of,  754, 
755;  administrative  functions  of, 
before  1888,  766. 

Kalmar,  union  of  Denmark,  Sweden 
and  Norway  at,  617. 

King,  the  Homeric  Greek,  48-51;  his 
part  in  legislation,  48;  in  tribal  jus- 
tice, 49;  his  priesthood,  50;  charac- 
ter of  his  headship,  51 ;  representa- 
tive position  of,  50 ;  likeness  of  early 
Roman,  to  early  Greek,  and  differ- 
ence, 144;  method  of  electing  early 
Roman,  144;  Roman,  gives  place  to 
consuls,  148 ;  of  Sweden-Norway,  as 
king  of  Sweden,  625,  637,  638;  as 
king  of  Norway,  626,  644 ;  selection 
of,  in  case  of  vacancy,  627 ;  as  joint 


INDEX. 


679 


king  of  Sweden  and  Norway,  628- 
631 ;  of  England  a  sort  of  permanent 
minister,  678 ;  not  a  member  of  the 
Cabinet,  679;  and  the  appointment 
of  ministers,  681,  684, 
Kings,  the  two  Spartan,  their  origin, 
100;  their  subordination  to  the 
Ephors,  104;  their  judicial  function, 
106. 

King's  Bench,  English  Court  of,  its 
origin,  666;  division  of  the  High 
Court,  732,  733. 

Kingship,  abolition  of  the,  in  Athens, 
67  ;  the  new  Teutonic,  235. 

Kinship,  the  first  bond  of  society,  4, 
21;  persistence  of  the  idea  of,  27;  j 
fictitious,  adoption,  28 ;  and  religion  j 
in  primitive  society,  29;  survivals 
of  the  idea  of,  33;  dissociated  from 
citizenship,  190. 

Labor,  Department  of  (U.S.) ,  1120 ;  the 
state  in  relation  to,  1257. 

Lagthing,  the  Norwegian,  646,  647.  j 

Land,  the  primitive  state  related  to 
no   particular,   14-16;    manner  in  | 
which  the  relationship  was  devel- 
oped, 14 ;  identification  of  the  mod-  , 
em  state  with  some  particular,  16; 
tenure  of,  in  Sparta,  99,  1248 ;  in 
Athens,  1251 ;  tenure  of,  among  the  ; 
Teutons,  222 ;  modified  by  conquest, 
236,  237. 

Landammann,  the  Swiss,  523. 

Landeshauptmann  (or  Landesdirek- 
tor),  Prussian,  476-478. 

Landesherren,  362. 

Landqemeinde,  Prussian,  455. 

Landrath,  the  German  sheriff,  448, 
450,  454,  456,  486,  487,  501. 

Landsgemeinde,  of  the  Swiss  cantons, 
517. 

Landtag,  the  Prussian,  465^70;  the 
Prussian  Provincial,  476,  477;  the 
Austrian  Provincial,  606,  609;  of 
Croatia-Slavonia.  614. 

Law,  the  making,  execution,  and  inter- 
pretation of,  1135,  1136;  its  nature 
and  development,  see  Topical  Analy- 
sis. 


!  Law  of  the  American  states,  its  char- 
i     acter,  886,  887 ;  its  scope,  889  et  seq.  ; 

its  conflicts,  904-910. 
i  Law-giver,  theory  of  an  original,  as 
I    creator  of  the  state,  19. 
Law,  international,  1216,  1217. 
Law,  '  personal,'  in  Gaul,  231 ;  in  Italy, 
1  25(J. 

j  Law,  political,  limitations  of,  1219. 
Law,  private,  effect  of  Roman  upon 
!    Teutonic,  231 ;  content  of,  1221, 1222. 
Law,  public,  effect  of  Roman  upon 
Teutonic,  230 ;  content  of,  1220, 1222. 
Law,  Roman,  entrance  of,  into  modern 
legal  systems,  25.5-267 ;  see  Topical 
Analysis;   its    typical  character, 
119(3 ;  spoke  the  will  of  the  Roman 
community  and  the  Roman  charac- 
ter, 1205. 

League,  the  Achaean,  its  history,  138; 
its  constitution,  139;  the  ^tolian, 
its  character  and  constitution,  140, 
141. 

Leagues,  the  Hanseatic  and  Rhenish, 
246. 

Legislation  in  the  Homeric  patriarchal 
presidency,  48;  in  Athens,  76;  in 
Sparta,  101,  102;  in  Rome,  144,  146, 
149,  154,155;  under  the  Empire,  170; 
growth  of,  in  ancient  city-states, 
194;  character  of  Roman  imperial, 
214 ;  its  codification,  215 ;  course  of, 
in  the  French  Chambers,  330-332; 
in  German  Reichstag,  419;  in  Swiss 
cantons,  516-522;  joint,  in  Austria 
and  Hungary,  597  ,  600;  in  Sweden 
and  Norway,  633;  in  England,  689, 
729;  distrust  of,  in  American  states, 
895;  course  of,  in  American  states, 
935,  936 ;  course  of  in  U.S.  Congress, 
1061-10(33,  1071-lOSl;  scope  of  mod- 
ern, 1134 ;  and  administration  under 
modern  systems,  1151-1153;  as  a 
source  of  Law,  1192-1193. 
Legislatures,  Swiss  cantonal,  516-518; 
of  the  American  states,  92.3-936  ;  not 
sovereign  bodies,  927;  development 
of,  1131-11.34. 
Legitimists,  French,  311. 
Lex  Visigothorum,  the,  256. 


680 


INDEX. 


Liberties,  their  creation  vs.  their  con- 
firmation by  constitution,  1139,  1140. 

Liberty,  development  of  constitution- 
al, in  the  American  colonies,  854, 
856. 

Limits,  natural,  to  state  action,  1280- 
1283. 

Local  government  in  France,  273-284, 
296,  297,  299,  336  et  seq. ;  in  Prussia, 
440-450,454-456,471  et  seq. ;  in  Switz- 
erland, 524  et  seq. ;  in  Austria,  610; 
in  Hungary,  613;  in  Sweden,  616, 
642 ;  in  Norway,  316,  (U8 ;  in  England, 
748  et  seq. ;  in  the  U.  S.,  973-977,  993 
et  seq. 

Local  Government  Board,  The  English, 
694. 

Locke,  John,  Civil  Government,  18; 
on  the  origin  of  the  body  politic,  18. 

Loudon,  the  government  of,  807-809. 

Lord  Lieutenant,  the  English,  758. 

Lords,  House  of,  the  Prussian,  465-4G9 ; 
the  Austrian,  607 ;  the  English,  its 
composition,  726;  function  of,  in 
legislation,  727 ;  as  a  supreme  court, 
728,  735. 

Lot,  election  by,  introduced  in  Athens 
by  Ephialtes,  91. 

Louis  IX.,  translation  of  Roman  law 
and  judicial  reforms  under,  260,  296; 
centralization  of  local  administra- 
tion by,  2S)6,  297;  Louis  XIV.,  per- 
sonal goA'ernment  of,  298. 

Louisiana,  peculiar  character  of  the 
laws  of,  911. 

Lycurgus,  part  of,  in  the  development 
of  Spartan  institutions,  109. 

Macedon,  mastery  of,  in  Greece,  133; 

conquests  and  influence  in  the  East, 

134-136. 
McMahon,  Marshal,  311. 
^Magistrate,  the  political,  replaces  the 

hereditary,  45. 
Magnates,  House  of,  the  Hungarian, 

612. 

Majorities,  force  of,  in  modern  poli- 
tics, 1180. 
Mala  Prohihita,  1214. 
Manors,  Prussian,  455. 


Marius,  164, 

Markgraf,  the  Prankish,  363 ;  indepen- 
dence of,  in  Brandenburg,  385. 

Marshal,  the  U.  S.,  1091,  1092. 

Massachusetts,  charter  of,  848. 

Maximilian  I.  of  Holy  Roman  Empire, 
375 ;  reforms  of,  376,  377. 

Mayor  of  the  Palace,  the  Austrasian, 
252. 

Mayor,  of  the  French  Communes,  349, 
350. 

Mediterranean,  the  Greek,  116. 

Metceci,  the  Athenian,  93. 

Middle  Ages,  government  during  the, 
see  Topical  Analysis. 

Migration  of  communities,  effect  of, 
on  customs  and  institutions,  40,  41. 

Military  leadership  among  the  Teu- 
tons, 225. 

Ministerial  System,  the  French,  291, 
295 ;  at  present,  322-329 ;  the  Prus- 
sian, 457,  460,  463. 

Ministers,  French  Council  of,  322,  325 ; 
relations  of  French  to  legislature, 
327-329 ;  Prussian  do.,  460 ;  relations 
of  Prussian  to  legislature,  464 ;  the 
Swiss,  528,  534,  535;  their  relations 
to  the  federal  legislature,  533;  the 
Austrian,  605;  the  Hungarian,  611; 
the  Swedish,  638;  the  Norwegian, 
644,  645;  the  Fnr/lish,  see  Cabinet, 
The  English ;  relations  of  American 
federal,  to  Congress,  1063, 1076 ;  rela- 
tion of,  to  head  of  the  executive  in 
modern  governments,  1148,  1149; 
relations  of,  to  administration  as  a 
whole,  1150;  relations  of,  to  modern 
legislatures,  1151-1153. 

Ministrant  functions  of  government, 
1234,  1255-1263. 

Ministries,  the  French,  323,  334,  335; 
development  of  the  Prussian,  451, 
457;  present  Prussian,  457,  463; 
Swiss  federal,  534,  535 ;  the  common, 
of  Austria  and  Hungary,  597 ;  and 
the  Delegations,  602;  the  Austrian, 
605;  the  Swedish,  639;  the  Norwe- 
gian, C45 ;  the  English,  691  et  seq. ; 
under  the  federal  system  of  the  U.S., 
1109-1120. 


INDEX. 


681 


Ministry  of  State  (Staatsmiyiistermm) , 
the  Prussian,  4(50. 

Monarchy,  character  of  primitive 
Greek,  48-52 ;  the  modern  absolute, 
1166, 1167 ;  the  modern,  usually  '  lim- 
ited,' 1168;  not  now  succeeded  by 
aristocracy,  1169;  the  feudal,  its 
character,  1243. 

Monopolies,  natural,  1275,  1276. 

Moravia,  582. 

Morley,  John,  quoted  as  to  the  origin 

of  government,  24. 
Mosaic  institutions,  influence  of,  on 

European  development,  220. 
Municipal  Council,  the  French,  350, 

351;  the  Prussian,  491,  492;  the 

English,  795;  the  American,  1036, 

1037. 

Municipalities,  English,  793-805, 

Napoleon,  codification  of  French  law 
by,  261 ;  reconstruction  of  French 
administration  by,  307,  308 ;  in  Ger- 
many, 381,  394. 

National  Assembly,  the  French,  317- 
320. 

National  Character  spoken  in  Law,  1207 
et  seq. 

National  Council,  the  Swiss,  its  com- 
position, 547-551;  its  functions, 
555,  556. 

National  Idea,  the,  in  U.  S.  growth  of, 
876  et  seq. 

Nationality  among  the  Greeks,  122; 
and  state  sovereignty  in  Switzer- 
land, 512. 

Nature,  Law  of,  received  by  Roman 
lawyers  from  the  Greek  Stoics,  208 ; 
laws  of,  and  laws  of  the  state,  1218, 
1219. 

Nature  and  forms  of  government,  see 

Topical  Analysis. 
Navy,  Department  of  the  (U.S.),  1115. 
New  Mexico,  law  of,  911. 
Nomophylaces  (guardians  of  the  law), 

instituted  in  Athens  by  Ephialtes, 

91. 

Northmen,  the,  615. 
Norway,  see  Topical  Analysis,  Sive- 
den-Norway, 


Objects  of  government,  the,  see  Topi- 
cal Analysis. 

Octavius,  see  Augustus. 

Odelsthiny,  the  Norwegian,  646,  647. 

Opinion,  effects  of,  upon  character  of 
the  government  of  the  U.  S.,  873  et 
seq. 

Opinion,  public,  ancient  compared  with 
modern,  1158. 

Organization  of  government  (admin- 
istrative), existing  parallels  and 
contrasts  in,  1147  et  seq. 

Origin  of  government,  probable,  see 
Topical  Analysis. 

Orle'anists,  French,  311. 

Ostmark,  the  (Austria),  363,  368. 

Ostracism,  instituted  in  Athens  by 
Clisthenes,  its  nature  and  operation, 
87. 

Otto,  the  Great,  365. 

Parish,  the  English,  its  history,  780; 
the  Poor-law,  781-784 ;  the  Highway, 
786. 

Parliament,  the  English,  its  early  evo- 
lution, 667-670;  genesis  of  the  two 
houses  of,  671 ;  and  the  ministers, 
676,  677,  686,  687,  689 ;  see  House  of 
Commons  and  House  of  Lords. 

Parliament  of  Paris,  260,  265,  293,  298. 

Parliamentary  Reform  in  England, 
710-715. 

Parliamentary  Responsibility  in 
France,  327;  in  Germany,  422;  in 
Switzerland,  533;  in  Austria-Hun- 
gary, 602 ;  in  Austria,  605 ;  in  Hun- 
gary, 611;  in  Sweden,  638;  in  Nor- 
way, 644;  in  England,  history  of, 
676,  677 ;  at  present,  686,  687 ;  under 
the  various  modern  systems  of  gov- 
ernment, 1151-1153. 

Patronage  of  office  in  France,  326,  340. 

Pays  de  contume,  and  de  droit  e'crit, 
257;  d'Etats,  French,  self-govern- 
ment in,  283,  284;  functions  of  their 
Estates,  284. 

Peloponnesian  War,  the,  significance 
of,  in  Greek  politics,  131. 

Pericles,  influence  and  constitutional 
reforms  of,  in  Athens,  90. 


682 


INDEX. 


Perioeci,  the  Spartan,  different  from 
Athenian  Metoeci,  98. 

Permanent  Council,  the,  in  England, 
663;  its  composition,  661;  its  pow- 
ers, 665. 

Persia,  wars  between  Athens  and, 
their  effects  upon  the  Athenian  con- 
stitution, 89. 

Petition,  imperative,  in  the  Swiss  can- 
tons, 519. 

Phoenicians,  influence  of,  upon  the 
Greeks,  113. 

Phratry,  a  union  of  'houses,'  54;  a 
unit  of  worship  and  of  military  or- 
ganization, 55. 

Pisistratus,  supremacy  of,  and  rela- 
tions to  the  Solonian  constitution, 
80. 

Plebeians,  the  Roman,  who  were  they  ? 
152 ;  secession  of,  153 ;  granted  Trib- 
unes, 151;  admitted  to  share  in  the 
legislative  function,  155;  admitted 
to  the  magistracies,  156;  discontent 
of,  with  the  uncodified  law,  198. 

Polemarchus,  the  archon,  69 ;  a  typical 
olficer,  110. 

Police,  the,  in  England,  747;  powers 
of  English  county  councils,  777. 

Post-oflice,  the  English,  695 ;  the  Ameri- 
can, 1117. 

Posts  and  telegraphs,  administration 
of,  in  German  Empire,  432;  in  the 
U.  S.,  913,  914. 

PrsRtor,  office  of,  created,  156;  the, 
urbcmiis  as  judge,  200 ;  as  interpreter 
of  law,  201,  202;  edict  of,  202;  the, 
peregrinus,  200;  functions  of,  203; 
originates  jus  yentium,  204;  provin- 
cial governors  as  prsetors,  207. 

Prefect,  the  French,  338,  339;  control 
over  local  authorities,  346,  347,  350, 
351 ;  and  the  Prefectural  Council, 
354. 

Presidency,  the  patriarchal  Greek,  48, 

50,  51 ;  creation  of,  189. 
President,  the,  of  France,  319-321; 

relations  of,  to  the  body  of  ministers, 

326. 

President,  the,  of  the  U.S.,  1097 ;  consti- 
tutional plan  of  his  election,  1098 ;  act- 


ual plan,  1099;  qualifications,  1100; 
salary,  1101 ;  duties  and  powers, 
1102;  his  appointing  power,  1103- 
1105;  succession  to  office  of,  1106; 
relation  of,  to  Congress,  1107,  1108 ; 
his  message,  1108. 

President,  the  '  Superior '  of  the  Prus- 
sian Province,  473,  475. 

Pre'vot,  office  of,  in  mediaeval  French 
towns,  277 ;  under  Louis  IX.,  296-7. 

Priesthood  of  heads  of  family  and  state 
in  primitive  society,  50,  58-60. 

Primogeniture,  its  connections  with 
religion  in  primitive  society,  60. 

Privy  Council,  the  English,  its  deri- 
vation from  the  Permanent  Coun- 
cil, 672;  its  assumption  of  judicial 
powers,  673;  administrative  depart- 
ments of  the,  699;  the  judicial  com- 
mittee of,  736. 

Property,  given  representation  by  So- 
lon, 73;  personal,  made  basis  of 
franchise  in  Athens  after  Persian 
wars,  89;  guardianship  of,  by  the 
state  in  Sparta,  99 ;  given  represen- 
tation in  comitia  centuriata  by  Ser- 
vius,  146,  147 ;  relation  of  the  state 
to,  1247  et  seq. 

Proprietary  colonial  governments,  851. 

Provinces,  administration  of  Roman, 
under  the  Republic,  158;  under  the 
Empire,  173,  174,  178,  181-183 ;  medi- 
aeval self-government  of  the  French, 
see  Pays  tVEtats ;  the  French,  mili- 
tary, not  civil,  districts,  300;  give 
place  to  modern  Departments,  308; 
the  Prussian,  administration  of,  473- 
478;  government  of  the  Austrian, 
609,  610. 

Provinzialrath,  the  Prussian,  476-478. 

Prussia,  the  rival  of  Austria,  382 ;  de- 
velopment of,  from  the  Mark  Bran- 
denburg, 383-393;  origin  of  Prussia 
proper,  390;  becomes  a  kingdom, 
392 ;  history  of  local  government  in, 
44(M47,  454^6. 


Qussstor,  office  of,  created  in  Rome, 
156. 


INDEX. 


683 


Race,  variety  of,  in  Austria-Hungary, 
588. 

Railways,  administration  of,  in  Ger- 
many, 431 ;  effects  of,  in  U.  S.  in 
aiding  the  national  idea,  878. 

Referendum,  the,  in  the  Swiss  cantons, 
521 ;  its  history,  522 ;  the  Swiss  fed- 
eral, 557 ;  practices  of  the  Swiss,  in 
U.  S.,  895,  897. 

Reform,  period  of  constitutional,  in 
Germany,  39G. 

Eeichsfjericht,  the  German,  436,  494. 

Reichsrath,  the  Austrian,  G07,  608. 

Reichstag,  the  Hungarian,  612. 

Reichstag,  the  German,  its  character 
and  competence,  413;  its  composi- 
tion, 414,  415 ;  sessions  of,  417 ;  or- 
ganization of,  418;  election  of  offi- 
cers in,  420. 

Religion,  its  connection  with  kinship 
in  primitive  society,  28,  29;  connec- 
tions with  precedent,  30 ;  the  priest- 
hood of  ancient  family  and  com- 
munal heads,  58;  private  gods  and 
the  representative  character  of  the 
priesthood,  59;  its  connections  with 
primogeniture,  60 ;  of  the  city,  61 ; 
and  tribal  organization  {temp.  Clis- 
thenes),  84;  community  of,  among 
the  Greeks,  123,  124;  politics  sepa- 
rated from,  193 ;  as  a  source  of  Law, 
1186. 

Representation,  introduction  of  the 
principle  of,  into  politics,  1130;  its 
operation,  1131,  1132. 

Representative,  power  of  a,  1133. 

Representatives,  in  American  state 
legislatures,  their  terms,  932,  and 
qualifications,  934 ;  apportionment 
of,  in  Federal  House  of  Representa- 
tives, 1066. 

Representatives,  House  of,  Prussian, 
466-470;  Austrian,  607;  Hungarian, 
612. 

Representatives,  House  of,  U.  S.,  1065 
et  seq. ;  apportionment  of  represen- 
tatives, 1066 ;  elections  to,  1067, 1069, 
1070;  its  organization,  1071-1076; 
must  originate  bills  raising  revenue, 
1081. 


Republic,  establishment  of  the  Roman, 

148;  effects  of  conquests  upon  the 
Roman,  151 ;  its  breakdown,  157-160 ; 
provincial  administration  under,  158 ; 
causes  of  failure  of,  159,  161-164; 
economic  decay,  162;  the  third 
French,  proclaimed,  310. 

Responsibility,  ministerial,  see  Parlia- 
mentary Responsibility. 

Revenue,  sources  of,  in  German  Em- 
pire, 435;  the  common,  in  Austria- 
Hungary,  599. 

Revision,  the  Court  of,  French  admin- 
istrative, 354. 

Revolution,  the  French,  governmental 
effects  of,  305-307. 

Rhode  Island,  charter  of,  850. 

Rights,  private,  Roman  conception  of, 
1238  et  seq. ;  the  state  and  political, 
1254. 

Riksdag,  the  unreformed  Swedish, 
representation  and  separate  action 
of  the  four  orders  in,  619 ;  the  pres- 
ent, 640,  641. 

Roman  Law,  see  Law,  Rom,an. 

Romans,  the,  and  the  English  com- 
pared, 1126-1128;  contrasted,  1129, 
1130. 

Rome,  government  of,  see  Topical 
Analysis ;  tenure  of  property  in, 
1252. 

Rotation  in  office,  970. 
Rousseau,  J.  J.,  The  Social  Contract, 
18. 

Russia,  Slavonic  village-communities 
in,  7;  power  of  the  Czar  of,  1204, 
1210. 

Salian  emperors,  the,  in  Holy  Roman 

Empire,  367. 
Sanitary  Districts,  Rural,  in  England, 

789;  Urban,  in  England,  802-804. 
Sanitation,  a  function  of  the  state, 

1261. 

Savigny,  on  the  stages  of  legal  devel- 
opment, 1199. 

Saxon  emperors  of  the  Holy  Roman 
Empire,  365,  366. 

Schoffengerichte,  the  Prussian,  497. 

School  Districts,  English,  810. 


684 


INDEX. 


Schools,  administration  of,  in  U.  S., 
1038-1(M1. 

Schulze,  the,  442,  443,  455,  456. 

Scotland,  the  administration  of,  704. 

Secession,  early  tolerance  for  threats 
of,  from  the  Union,  875. 

Secretary  of  State,  the,  in  an  American 
state,  982-988,  991. 

Self-government,  local,  in  France,  in 
Middle  Ages,  27-3-284. 

Semitic  Races,  their  comparative  in- 
significance in  this  study,  3. 

Senate,  the  Athenian  irrohoulentic,  of 
Four  Hundred  instituted  by  Solon, 
76 ;  of  the  Areopagus,  77. 

Senate,  the  French,  composition,  etc., 
of,  314;  influence  of  President  and, 
321 ;  as  a  court  of  justice,  355. 

Senate,  the  Roman,  constitution  of, 
under  the  kings,  and  change  effected 
by  Servius,  146;  its  character  and 
composition  under  the  Republic,  149, 
150 ;  censors  revise  roll  of,  156 ;  centre 
of  oligarchic  power,  163,  164 ;  reform 
of,  by  Augustus,  166;  certain  prov- 
inces left  to,  under  Augustus,  167 ; 
.  relations  of  Augustus  to,  167 ;  posi- 
tion and  powers  of,  under  the  Em- 
pire, 167,  169-171,  179,  214;  provin- 
cials gain  admission  to,  173 ;  powers 
of,  all-inclusive,  1240. 

Senate,  the,  of  the  U.  S.,  its  character 
and  composition,  1055-1059;  its  pre- 
siding officers,  10(30,  1064;  its  organ- 
ization, 1061,  1062;  its  dealings  with 
the  Executive,  1063;  its  part  in  ap- 
pointments to  office,  1102-1104. 

Senators,  American  state,  their  terms, 
932;  and  qualifications,  934. 

Servius,  reforms  of,  146. 

Session,  limitation  of  length  of,  in 
American  states,  924,  926. 

Sheriff,  the  English,  751-753,  758;  of 
colonial  Massachusetts,  840;  of  colo- 
nial Virginia,  844 ;  in  the  American 
states,  his  election  and  relation  to 
the  courts,  962 ;  contrasted  with  U.  S. 
marshal,  963. 

Slavery  in  the  way  of  nationality  in 
the  U.  S.,  879. 


Slaves,  the  Athenian,  94 ;  the  Spartan, 
97. 

Slavonia,  584. 

Slavonic  village-communities  in  Rus- 
sia, Dalmatia,  and  Croatia,  7. 

Socialism  and  the  modern  industrial 
organization,  1271. 

Society  an  organism,  government  an 
organ,  1160,  1269,  1273,  1279;  new 
character  of  political,  1181 ;  objects 
of,  1273. 

Solon,  position  of,  in  Athenian  tradi- 
tion, 19;  political  changes  preceding 
his  appearance  in  Athenian  politics, 
67-69;  made  archon  eponymus  at  a 
crisis,  70;  his  economic  reforms,  72; 
his  political  reforms,  73-79;  relations 
of  Pisistratus  to  reforms  of,  80 ;  new 
principles  introduced  by,  in  Athenian 
constitution,  79. 

Sonderbund,  the,  509. 

Sovereignty,  the  feudal  conception  of, 
243;  state,  in  Switzerland,  512;  na- 
ture of,  1209  et  seq. ;  the  analytical 
account  of,  1227,  1228. 

Sparta,  see  Topical  Analysis;  prop- 
erty system  in,  99,  1248-1250. 

Spartans,  their  conquest  of  the  valley 
of  the  Eurotas,  96 ;  relations  to  the 
subjected  population  of  Laconia,  96; 
relations  to  the  state  and  to  each 
other,  99;  and  the  state  discipline, 
107. 

Speaker,  the,  of  the  American  House 
of  Representatives,  his  powers,  1071 ; 
his  election,  1072;  his  name,  1073. 

State,  the,  its  origin  in  kinship  and 
the  family,  4;  development  out  of 
the  patriarchal  family,  12;  primi- 
tive, disconnected  with  a  particular 
territory,  14 ;  modern,  identified  with 
land,  16;  contract  theory  as  to  ori- 
gin of,  18 ;  traditions  of  an  original 
law-giver  as  creator  of,  19;  theory 
of  the  divine  origin  of,  20 ;  criticism 
of  theories  as  to  origin  of,  21-23; 
emergence  of,  from  the  family  stage, 
63;  guardianship  of  property  by,  in 
Sparta,  99;  Roman  allegiance  to, 
227. 


INDEX. 


685 


State,  Department  of  (11.  S.),  IHL 
States,  the,  of  the  Union,  constituent 
members,  not  administrative  divis- 
ions, 884 ;  tlieir  character,  organs, 
and  functions,  see  Topical  Analysis. 
States-General,  the  French,  origina- 
tion of,  288;  character  and  powers 
of,  289. 

Statu.t,  the  law  of,  in  primitive  society, 
17,  21,  32. 

Stein,  Baron  vom,  reforms  of,  452,  457, 
471.  473,  490,  500. 

Storthing,  the  Norwegian,  G46,  G47. 

Strategoi  (generals),  ten,  created  in 
Athens  by  Clisthenes,  8G ;  their  rela- 
tions to  the  archon  polemarchus  and 
to  each  other  in  the  field,  8(5 ;  typical 
o£ficers,  110. 

Suffrage,  see  Franchise. 

Sulla,  1(54. 

Sumptuary  Laws,  12G3. 
Superintendent  of  Education,  the,  in 

an  American  state,  992. 
Sweden,  see  Topical  Analysis,  Sweden- 

Norioay. 

Switzerland,  emergence  of,  from  Ger- 
many, 373;  see  Topical  Analysis. 
Syssitia,  the  Spartan,  107,  110. 

Tables,  the  XII.,  prepared,  198;  ex- 
panded by  interpretation,  199;  ap- 
plied by  the  Prajtor,  201. 

Taxation,  variety  of  laws  touching,  in 
U.  S.,  90G;  local  and  state,  in  U.  S., 
1042,  1043. 

Telegraphs,  see  Posts  and  Telegraphs. 

Territorial  sovereignty,  development, 
of,  in  Germany,  359-3(;2. 

Territories,  the,  of  the  U.  S.,  1052; 
courts  of  the,  1093,  1094. 

Territory,  the  federal,  in  U.  S.,  1047 
et  seq. 

Teutonic  Customs,  Ancient,  their  evi- 
dence as  to  social  organization,  7 ; 
institutions  in  Sweden  and  Norway, 
Gl();  origin  of  the  English  constitu- 
tion, G51-()54 ;  Law  spoke  national 
character,  1208. 

Teutons,  and  Roman  legal  institutions, 
219;  contact  of,  with  Rome,  221; 


primitive  institutions  of  the,  222- 
228;  communal  government  among, 
222;  free,  uufree,  and  noble  among 
the,  223;  inter-communal  govern- 
ment, 224 ;  military  leadership,  the 
comitatus,  225 ;  principle  of  personal 
allegiance  among  the,  225,  227,  228, 
235 ;  customs  of,  affected  by  Roman 
law,  229-231;  institutions  of,  in 
Sweden  and  Norway,  GIG;  the,  in 
England,  G52-G54. 

Theatre,  largess  to  enable  the  com- 
mons to  attend  the,  in  Athens,  90, 
increased,  92. 

Thebes,  brief  supremacy  of,  132. 

ThesniothetsB,  the,  their  judicial  func- 
tions, 69. 

Town-meeting,  American,  999,  1003, 
et  seq.,  passim. 

Towns,  Roman  law  in  the,  of  the  Mid- 
dle Ages,  217 ;  of  Middle  Ages  per- 
petuate and  transmit  Roman  princi- 
ples, 232;  feudalism  and  the,  244; 
guilds  in  the  mediaeval,  245 ;  leagues 
of  the  Hanse  and  Rhenish,  24G ;  lib- 
erties of,  in  mediaeval  France,  27G; 
non-Roman  mediajval  French,  277, 
278;  mediaeval,  and  the  Crusades, 
279;  privileges  of,  in  mediaeval 
France,  280;  and  forms  of  govern- 
ment, 281 ;  decay  of  independence 
of,  in  France,  282;  subjection  of, 
to  the  king  in  France,  287;  of  Bran- 
denburg, 441-444;  the  Neio  Eng- 
land, their  separate  foundation  at 
first,  837,  their  union,  838,  their 
forms  of  government,  839. 

Township,  the  American,  its  historical 
origin,  999;  absorbed  into  larger 
units  of  government,  1001 ;  partial 
decay  of,  1002;  its  organization  in 
New  England,  1003-1005;  of  the 
Northwest,  1006-1008;  its  origin  there, 
1009;  its  spread  in  U.  S.,  1010,  1011; 
its  organization  outside  of  New  Eng- 
land, 1012-1017 ;  of  the  Middle  Atlan- 
tic States,  1019,  1022 ;  of  New  York, 
1020 ;  of  Pennsylvania,  1021 ;  in  the 
South,  1023;  in  Virginia,  1023. 

Trade,  the  state  in  relation  to,  1256. 


686 


INDEX. 


Transylvania,  584. 

Treasurer,  the,  of  an  American  state, 
990,  991. 

Treasury  Department,  the  English, 
6iV)-(398  ;  of  the  U.  1112. 

'Tribe,'  the,  12;  a  union  of  x>hratries, 
o-t ;  a  unit  of  worship,  55. 

Tribes,  new  Athenian,  created  by  Clis- 
thenes,  82;  religion  and  the  tribal 
organization,  84. 

Tribunes  of  the  people,  154,  155 ;  mili- 
tary, 156. 

Triumvirates,  second  and  third,  160. 

Trojan  war,  significance  of,  35, 115, 125. 

Turanian  Races,  their  comparative  in- 
significance in  this  study,  3. 

Union,  preliminary  steps  towards  the 
American,  863;  the  Confederation, 
865-867;  need  for  a  better,  868; 
character  of  the  present,  872-884; 
early  sentiments  towards,  874 ;  early 
tolerance  for  threats  of  secession 
from,  875:  completed  by  Civil  War, 
880. 

'Union,'  the  English  Poor-law,  787, 

788,  790-792. 
United  States,  government  of  the,  see 

Topical  Analysis. 
Universities,  created  by  study  of  the 

Roman  law  in  the  Middle  Ages,  258. 

Veto,  the  popular,  in  Swiss  cantons, 
520 ;  of  the  governors  of  the  Ameri- 


can states,  978,  981 ;  of  the  President 
of  the  U.  S.,  1077. 
Vice  Chancellor,  the  German  Imperial, 
426. 

Vice  President  of  the  U.  S.,  1060,  1097, 
1099. 

Villages,  government   of  American, 
1030  et  seq. 
,  Virginia,  colonial,  government  of,  844 
;  845. 

Vogt,  the,  443. 

I  War,  Department  of  (U.  S.),  1114. 

i  AVar,  the  Civil,  in  U.  S.,  completes  the 

Union,  880. 
War  and  Domains  Chambers,  448  et 
seq.,  481;  fusion  of  the  administra- 
tion of  War  and  of  Domains  in  Prus- 
sia, 450;  Commissariats,  Prussian, 
«9. 

War,  the  Thirty  Years',  379;  the  Son- 

derbund,  509. 
Witenagemot,  the  English,  its  origin, 
656 ;  its  powers,  657 ;  merged  into 
the  Great  Council  of  the  Norman 
kings,  659. 

i  Works,  public,  and  the  state,  1259. 

i  Wiirttemberg,  relations  of,  to  other 
German  states,  394,  397,  399,  401; 
independence  of,  in  administration 
of  posts  and  telegraphs,  432 ;  in  mili- 
tary administration,  434. 

Zollverein,  the,  396. 


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